This is the text of the presentation by President of the National Native Title Tribunal, Raelene Webb QC of the 11th annual Michael Kirby Lecture, presented by the School of Law and Justice at the Southern Cross University on 20 July 2017.
I acknowledge the original Custodians of the land on which this campus stands and pay my respects to their Elders past, present and emerging, and acknowledge the unique role they play in the life of the region.
I’m very honoured to be asked to present the annual Michael Kirby lecture this year, particularly with the Honourable Michael Kirby present.
Reflecting on my topic – Re-imagining native title through the eyes of Justice Kirby – it just struck me just how courageous, or perhaps foolish, it is for me to attempt this topic in his presence. But I have never been lacking courage in these matters. It feels a bit like hang-gliding at the moment. Once you are standing on the edge of the cliff, all strapped in, it’s too late to change your mind.
It’s fitting to be talking about native title this year – the 25th anniversary of the decision in Mabo.
I intend to take you on a journey of native title seen through the eyes of Justice Kirby – exploring how his Honour influenced – and as the case often was, dissented to – the direction in which the doctrine of native title developed during his 13 years of service on the bench of the High Court of Australia.
I will outline where the law of native title had landed in 2009 when Justice Kirby left the bench – far from the native title his Honour had imagined in his judgments.
Finally, I will briefly review recent developments in native title law through three High Court cases which have moved the picture of native title closer to that envisioned by Justice Kirby.
So to step off the cliff!
Mabo and the Native Title Act 1993 (Cth) – A framework for native title
Let’s start 25 years ago with Mabo when the High Court found ‘the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands’. With those words, the High Court inserted the legal doctrine of native title into Australian law.
This was a truly watershed moment in Australian legal history, though it was not, of course, without critique and debate. The in-principle recognition of native title underlying Australia’s established systems of property law led to criticism that the High Court had usurped a legislative function, and excited ‘ambition, consternation and vituperation’ from those who thought their interests may fall within the scope of the emerging Mabo principle. As Justice Kirby observed extra-judicially, ‘[r]arely has a decision of an Australian court attracted so much praise and so much calumny.’
Writing in 1994 ‘In Defence of Mabo’, Justice Kirby, then President of the New South Wales Court of Appeal, commended the decision for its legal significance and reasoning.
Firstly, his Honour emphasised with approval that the Court had ‘recognised the legitimate claims of indigenous people to native title’, overruling the ‘inappropriate application of the common law doctrine of terra nullius to the Australian continent’. Indeed, he stated:
No fair-minded person, with knowledge of the Aboriginal presence in Australia before British settlement, could seriously object to the decision of the nation’s highest court in refusing any longer to build its laws as to land title on a myth and a falsehood.
Justice Kirby also applauded that the Court provided valuable guidance to Australian courts in respect of ‘the proper circumstances in which long-standing rules of the common law in Australia may be overruled’ and ‘the proper influence which international law and international instruments may play in the development of the common law’.
Finally, his Honour acclaimed the decision, and the surrounding debate, for bringing to the fore ‘the important issue of the judicial role in a constitutional democracy’. In Justice Kirby’s view, the criticisms of the Court in Mabo usurping a legislative function overlooked the legitimate judicial function of judicial creativity in the law.
Ultimately, his Honour observed that the decision was consistent with the duty of the courts to attain a proper balance between stability and adaptation of the common law to new and ever changing social circumstances. He stated:
Mabo will be viewed as an illustration of the way in which the common law system eventually corrects itself of most errors, and rights most wrongs. Being a system based upon human reason and justice, it eventually attains those goals … [F]ar from being a revolutionary usurpation by the judges of legislative power, Mabo is an example of the common law in action.
Mabo provided a framework – ‘a judicial stimulus to action’ – for the recognition of Indigenous title, but it left many questions unanswered. Justice Kirby called for the framework to be completed by subsequent case law or legislative enactment.
The Native Title Act was enacted in 1993 as the statutory response to Mabo, and by the time many of those unresolved legal questions reached the High Court, Justice Kirby occupied a seat on its bench.
From 1996 to 2002, Justice Kirby sat on eight significant native title decisions involving native title. In 2008, the year before he left the bench, he sat on two other cases which gave him further opportunity to comment on native title.
Waanyi & Wik – The ‘pastoral lease question’
One of the first and most prominent issues to be resolved after Mabo was the relationship between native title and pastoral leases. The answer to this question would, in large part, determine the scope for native title on mainland Australia.
0n 7 February 1996, just one day after Justice Kirby was sworn in as a Justice of the High Court, the Court heard argument on the pastoral lease question in North Ganalanja Aboriginal Corporation & Waanyi People v Queensland. The matter was triggered by a decision of the then President of the National Native Title Tribunal, Justice French, that an application for a determination of native title over land subject to a pastoral lease not be accepted for registration because the effect of the grant of a pastoral lease under the Queensland Lands Act was to extinguish native title. An appeal to the Full Federal Court was dismissed.
The High Court, on appeal, declined to consider the substantive pastoral lease issue, emphasising instead the beneficial character of the procedures established by the Native Title Act, which, once invoked, must be observed.
The Court was short in upholding the appeal. So keen was the High Court to set aside the Full Court decision that it did so immediately – with reasons to follow – adjourning for only 7 minutes following 2 days of argument with 20 counsel appearing before the Court.
Deciding for the Waanyi people on the procedural question and determining that it was premature to consider the pastoral lease question, the Court directed that the application for a determination of native title be accepted, triggering the valuable negotiation and procedural rights of the Waanyi people contemplated by the Native Title Act.
In contrast to the majority, Justice Kirby was of the view that the Court should have determined the pastoral lease question, stating with somewhat dramatic flair,
‘Until determined it will remain a Damoclean sword hanging over the operation of the Act and the rights of many parties, including those presently before the Court.’
Certainly it was not long before the issue came again before the Court, with pretty much the same counsel, but perhaps amplified in number, heading off again to Canberra just a few months later to argue the ‘pastoral lease question’ a second time in the Wik Peoples v Queensland test case.
Wik was decided by a bare majority of 4:3, and Justice Kirby’s opinion in favour of the Aboriginal appellants was decisive in the outcome, determining the Queensland pastoral leases under consideration did not confer rights to exclusive possession, and therefore did not necessarily extinguish native title.
The decision was significant as it meant native title could co-exist with other interests. However, it also reinforced the superiority of granted rights over native title rights.
The test is inconsistency: Where there is no inconsistency between the rights granted under the lease and the rights conferred by native title – and therefore no necessary extinguishment – native title will survive and co-exist with the rights under the lease.
However, if inconsistency is found between the rights conferred by the grant of pastoral lease and the native title rights, the rights under the pastoral lease will prevail.
Wik can be considered as important as Mabo for shaping the future of native title. It opened up the possibility of native title existing over vast swathes of Australia where it was previously thought to have been extinguished – including by the other three Judges of the High Court, two members of the Full Federal Court in the Waanyi case, Justice French and by many other leading lawyers and academics.
In his Honour’s extra-judicial writings, Justice Kirby noted the ‘unrelenting attacks by politicians and others’ to which the Court was subjected in the wake of the Wik decision.
The response to the decision, he said, ‘constituted some evidence of a decline of civic understandings between the branches of Government in the Australian Commonwealth’ observing that it was ‘a sorry episode in the relationship between the Parliament and the Court.’
Justice Kirby noted that following, and as a direct result of, the Wik decision, there was a commitment by a leading Government politician that ‘capital C Conservative[s]’ would be appointed to replace retiring Justices, and that ‘the philosophical balance of the High Court’ indeed shifted significantly after his own appointment.
Fejo – Extinguishment of freehold title
The next case was Fejo v Northern Territory in 1998.
The Larrakia people, whose country includes areas around Darwin in the Northern Territory, sought a declaration of native title in the Federal Court. The case concerned an area of land which was once granted in fee simple but had later reverted to vacant Crown land.
On appeal, the High Court considered whether native title could still exist over land which was once granted in fee simple but later reverted to vacant Crown land. The High Court held that native title was extinguished by freehold grants and that the extinguishment was permanent; it cannot be revived when the land is once again held by the Crown.
Writing in a separate judgment, Justice Kirby agreed that the freehold title conferred by the Northern Territory could not co-exist with native title, and emphasised:
The inconsistency lies not in the facts or in the way in which the land is actually used. It lies in a comparison between the inherently fragile native title right, susceptible to extinguishment or defeasance, and the legal rights which fee simple confers.
In relation to the appellant’s contentions that the extinguishment might be ‘retrievable’, Justice Kirby expressed sympathy and stated ‘the attractions of embracing a principle of revival of native title are strong.’
Indeed, his Honour hypothesised:
A rule of the common law could doubtless be formulated which permitted the “lifting” of the extinguishment for a case such as the present. Such a rule might leave private owners of land in fee simple fully protected but expose to such claims governmental landholdings of the very kinds of land in which native title might often have its most practical meaning.
Despite this, Justice Kirby found, for reasons of legal authority, principle and policy, he could not accept the proposition that extinguishment occasioned by the grant in fee simple is other than irreversible.
His Honour posited:
The true test propounded by this Court involves a comparison between the legal character of the interest in the land under Australian law and the native title interest in the same land. By that test there is always inconsistency where the interest in question under Australian law is one of fee simple. So fragile is native title and so susceptible is it to extinguishment that the grant of such an interest, without more, “blows away” the native title forever.
Yanner v Eaton – Regulation or extinguishment
Extinguishment was revisited in Yanner v Eaton in 1999, where the majority, including Justice Kirby, held that although the Queensland Fauna Conservation Act regulated the way the native title holder’s rights and interests to hunt and fish for crocodiles may have been exercised, it did not extinguish those rights.
The Court’s reasoning was centred on the concept of native title as recognised by the common law. The joint judgment put forward an understanding, which would prove a contrast to future decisions, that ‘Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights’.
The judgment went on to state: ‘an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land.’
Yarmirr – Native title at sea
Two years later, connection with the sea was the focus of Commonwealth v Yarmirr. The High Court held that native title could exist in the sea and seabed, though the rights and interests were not exclusive. The Court considered that the question of whether the common law will recognise native title over the seas is essentially an investigation as to whether and how the common law and relevant native title rights could coexist.
The majority held there was no necessary inconsistency between the Crown’s assertion of sovereignty over the territorial sea and the continued recognition of native title, but rejected the claimants’ assertion of exclusive rights for two main reasons.
Firstly, they took into account and upheld the trial judge’s finding of evidence indicating that the requirement to seek permission to enter the claimants’ country only applied between Aboriginal people.
Secondly, the majority held:
… there 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.
Justice Kirby, writing in strong dissent, was critical of both aspects of the majority reasoning for taking an overly narrow approach. A broader approach to determining ‘exclusivity’ was appropriate, he said, noting that from the perspective of the claimants, rights could retain a characteristic of exclusivity while being qualified by other public rights in the same area.
Nor did he see any ‘reason of principle or policy why … a grant of non-exclusive fishing licences is inconsistent with … a residue of exclusive elements’ of native title in the sea.
Justice Kirby was also deeply critical of the reliance on the fact the claimants had not enforced their rights against non-Aboriginal parties, as a basis for finding that those rights were not exclusive in nature. He said:
… it would not be reasonable for a court to place undue weight on methods of enforcement of Aboriginal rights against non-Aboriginal persons. How, it might be asked, were the forebears of the claimants expected to assert and uphold their rights to their sea country when the balanda enjoyed indisputable superiority of weapons, and until Mabo, incontestable superiority of legal rights?
His Honour would have found in favour of the claimants that ‘qualified’ exclusive native title rights in the sea could be recognised by the common law, explaining:
They yield their rights in their “sea country” to rights to navigation, in and through the area, allowed under international and Australian law, and to licensed fishing, allowed under statute. But, otherwise, they assert a present right under their own laws and customs, now protected by the “white man’s” law, to insist on effective consultation and a power of veto over other fishing, tourism, resource exploration and like activities within their sea country because it is theirs and is now protected by Australian law.
Ward – Native title as a ‘bundle of rights’
The next year, in 2002, Western Australia v Ward gave the High Court the opportunity to clarify the concept of extinguishment after a ‘rather disparate collection of concepts and judicial terminology’ had developed in native title cases to that point. It held that pastoral leases and mining leases did not necessarily extinguish native title in Western Australia; though it was the reasoning that led to those conclusions that was particularly important.
Over the ten years since Mabo, two principles for common law extinguishment had emerged:
· a presumption of no extinguishment without a clear and plain intention; and
· a doctrine of inconsistency between two sets of rights.
By giving primary regard to the Native Title Act over Mabo and Wik, the majority held the mandated test was that of ‘inconsistency’.
The Court also characterised native title as a ‘bundle of rights’, which could be extinguished in part or incrementally. A significant aspect of the majority reasoning on partial extinguishment was the move away from a more holistic approach to the underlying concept of native title as an expression of communal responsibility and ownership.
The effect of the Ward decision on native title was profound. It confirmed prior grants and interests could extinguish native title in part, in effect permanently extracting particular rights and interests from the native title ‘bundle’, and leaving a patchwork of extinguishment across Australia.
Justice Kirby concurred generally with the joint reasons of the majority and their general approach to construing the Native Title Act and State and Territory legislation. However, he recorded some significant reservations in relation to the concepts of ‘recognition’ and ‘extinguishment’ of native title rights and interests.
Justice Kirby noted that these concepts, as outlined in the Native Title Act, are ambiguous or informed by the common law. He identified three interpretative principles the Court should apply in giving them meaning.
First, in the case of any ambiguity, the interpretation that upholds fundamental human rights, rather than one that denies those rights, should be preferred.
Secondly, so far as is possible, it should take into account relevant analogous developments of the common law in other societies facing similar legal problems.
Thirdly, a clear and plain purpose is required for a statute to extinguish property rights, particularly where the legislation purports to do so without compensation.
In Justice Kirby’s view, the provisions should be construed consistently with the principles of fundamental human rights, as expressed in international law, stating:
There is no aspect of those principles that is clearer or more emphatic than that which forbids adverse discrimination for reasons of race. Also of relevance is the international law that protects the interests of indigenous peoples, who are often specially vulnerable to racial and other forms of discrimination. The Native Title Act itself contemplates that this should be so.
Recognition of native title
Justice Kirby noted that the concept of ‘recognition’, which began with Mabo and is now governed by the Native Title Act, does not affect the underlying Aboriginal law. His Honour understood: ‘That system of law operates separately, regardless of any recognition or extinguishment by the Act or any other legislative regime.’
He also proposed a more holistic understanding of native title rights and interests than the ‘bundle of rights’ posited in the majority reasons, emphasising that the object of the Native Title Act is the recognition of ‘native title’, rather than the provision of a list of activities permitted on, or in relation to, areas of land or waters the subject of a claim.
His Honour illustrated the divergence in his approach to recognition from that in the joint reasons, by reference to two contested aspects of the claimed rights: the use of resources and the right to maintain and protect cultural knowledge.
The asserted native title right to the use of resources, was illustrative of the ease with which a narrow interpretation of s 223(1) of the Native Title Act – the statutory definition of native title – would restrict its beneficial operation to accord full recognition to the interests and aspirations of native title holders.
While his Honour agreed that, in that matter of Ward, native title to minerals and petroleum had been extinguished by legislation his Honour’s view was that a right to resources should be conceived of broadly, to the possible inclusion of minerals and petroleum where they exist, rather than requiring specific proof of the historical use of identified resources.
Significantly, Justice Kirby asserted the possibility of the development of modern aspects of traditional rights and interests. In his Honour’s opinion, ‘it would be a mistake to ignore the possibility of new aspects of traditional rights and interests developing as part of Aboriginal customs not envisaged, or even imagined, in the times preceding settlement’.
He envisaged an approach that took into account ‘the pressures that existed in relation to Aboriginal laws and customs to adjust and change after British sovereignty was asserted over Australia’ and allowed the extension of historical, traditional uses of resources to modern conditions.
The principle of ‘equality of the rights of all Australians before the law’ was fundamental in his Honour’s reasoning.
The High Court was asked by the Aboriginal appellants to reinstate the finding at first instance of a native title right to ‘maintain, protect and prevent the misuse of cultural knowledge’ associated with the claim area.
The majority held that such a right is not susceptible to recognition under the Native Title Act. Justice Kirby disagreed.
For a native title right to be recognised, the critical threshold question is whether a right or interest is ‘in relation to’ land or waters. The phrase ‘in relation to’ is very broad. At the time of Ward, the words had not yet been the subject of much elucidation in native title decisions as the native title rights claimed had so far related physically to land or waters, in a manner analogous to common law property concepts.
The claimed right to protect cultural knowledge in Ward provided the opportunity to elaborate the well-established principle that native title is sui generis and should not be restricted to rights with precise common law equivalents’.
Noting the extreme ends of the spectrum of the right which could, at one end, be to restrict access to a physical area of land or waters; at the other to restrict access to representations, images or oral accounts relating to land or waters, Justice Kirby emphasised the inherently spiritual connection between Aboriginal Australians and ‘country’ and the inextricable link between cultural knowledge belonging to Aboriginal people and their land and waters.
In his Honour’s view, if cultural knowledge is inherently related to the land according to Aboriginal beliefs, it follows logically that the right to protect such knowledge is related to the land for the purposes of the Native Title Act.
This construction, he said, was consistent with the purposes of the Native Title Act, evinced in the Preamble, including the full recognition of the rich culture of Aboriginal peoples and the acceptance of the unique character of native title rights.
His Honour also considered it supported by Australia’s ratification of international instruments providing for the protection of fundamental human rights.
Finally, his Honour raised a possible constitutional argument for the protection of the right to cultural knowledge, through the application of s 116 of the Constitution, which provides a prohibition on laws affecting the free exercise of religion.
Test for extinguishment
Turning to extinguishment, Justice Kirby agreed with the joint reasons that a previous exclusive possession act will extinguish native title, and that the relationship of all other interests with the asserted native title raises the question of inconsistency. However, his Honour found the ‘reasonable user’ test useful, providing the examples of pastoral leases, which usually confer rights and interests to make improvements necessary for pastoral activities and prevent others from engaging in pastoral activities on the same land – and are not necessarily inconsistent with native title rights. He reasoned the terms of mining leases similarly usually confer exclusive possession only to the extent necessary to prevent others from carrying out mining.
Inconsistency and qualified exclusivity
Justice Kirby recalled his dissenting opinion in Yarmirr in relation to inconsistency and exclusivity – that is, that native title rights could retain a characteristic of exclusivity while being qualified by other rights in the same area.
While he noted his view was a minority opinion and he was bound to accept the categorisation of exclusivity in the majority approach in Yarmirr, his Honour again outlined his preferred interpretation in the context of the circumstance in Ward.
That is, Justice Kirby favoured the recognition and non-extinguishment of the claimed right to ‘speak for country’ as a form of exclusive title, including the rights to determine the uses of the country concerned, protect that country from degradation and care for it spiritually. He opined the grant of non-exclusive mining leases or reserving lands were not sufficient to extinguish otherwise exclusive elements of native title, including the right to ‘speak for country’.
Justice Kirby acknowledged that until his dissenting view finds favour in a majority in the High Court or is legislated he must (and did) submit to the law as expressed in the majority opinion.
Wilson v Anderson – Pastoral leases in NSW
Wilson v Anderson, was handed down the same day as Ward. It raised the question of whether leases for grazing purposes in the Western Lands Division in New South Wales extinguished all or any native title.
The High Court had already found that native title could co-exist with Queensland and Western Australian pastoral leases in Wik and Ward respectively. The majority in Wilson v Anderson held that the New South Wales leases granted in perpetuity for the purpose of grazing extinguished native title entirely. The rationale behind the ‘paradoxical perpetual lease’ was to strengthen the class of tenure to ensure that lessees could obtain adequate finance on the security of their lease. By aligning the perpetual lease with freehold in the sense of permanency, and ignoring its limitations in respect of use, the majority in the High Court made a ‘presumption of inconsistency in line with freehold’.
Justice Kirby, in strong dissent, concluded that the New South Wales leases did not confer exclusive possession and therefore did not lead to complete extinguishment of native title.
There is perhaps no more illustrative picture of native title seen through the eyes of Justice Kirby than his description in Wilson v Anderson of being ‘In the jungle of native title legislation’. Under this subheading, his Honour wrote:
That impenetrable jungle of [land] legislation remains. But now it is overgrown by even denser foliage in the form of [the Native Title Act] and companion State legislation … It would be easy for the judicial explorer to become confused and lost in the undergrowth to which rays of light rarely penetrate. Discovering the path through this jungle requires navigational skills of a high order. …
The only way to pass through the jungle is to retain one’s bearings, as the explorers of Australia have traditionally done, by keeping the eyes fixed on clear sources of light – like the rising sun in the morning or, at night, the constellation we call the Southern Cross. That is what I will try to do in these reasons.
One ‘beam of light in the legal jungle’ identified by Justice Kirby was the fundamental principle that native title rights and interests should persist, in the face of legislation said to be inconsistent with them, unless there is ‘a clear and plain intention’ to extinguish such rights:
His Honour cautioned the Court to be ‘slow to reverse the steps, taken by Mabo and Wik, in the recognition of the native title rights of Aboriginal people’, noting that there were ‘already enough legal and practical impediments to the attainment of legal protection for native title rights without now eroding the principles accepted by the majority in those two cases’.
Yorta Yorta – Continuity of traditional community
But even more impediments were put in place shortly after, by the decision in Yorta Yorta v Victoria. Yorta Yorta was concerned with whether native title was extinguished by non-acknowledgement and non-observance of traditional customs.
The majority of the High Court held acknowledgment and observance of the normative rules of a society must have continued substantially uninterrupted since acquisition of sovereignty. Yorta Yorta brought this concept of continuity of a traditional society to the forefront, in its consideration of native title in the south east corner of Australia, where Indigenous people had experienced seven or eight generations of intensive non-Indigenous presence and activity.
The finding of the trial judge that native title had been washed away by the ‘tide of history’ was confirmed.
Justice Kirby, however, writing in a joint dissenting judgment with Justice Gaudron, considered that the definition of native title in the Native Title Act did not require continuity of traditional community as a prerequisite for a determination that native title exists. Their Honours concluded that the relevant issue was simply ‘whether the Yorta Yorta people now acknowledge and observe traditional laws and customs by which they have a connection with the land and waters claimed by them’.
The implications of the Yorta Yorta decision were profound for many native title claims, particularly in settled areas.
Ten years of native title
In the wake of Ward, Wilson v Anderson and Yorta Yorta Maureen Tehan reflected on native title in Australia. She wrote:
Ten years of the Native Title Act has seen the common law of native title emerge, blossom, change and wilt. The promise engendered by Mabo has failed to materialise in the form of a robust and enforceable native title. To that extent, the sun may have set, with native title fatally wounded by the Native Title Act and the High Court.
Reflecting in 2005, after nearly ten years on the High Court, Justice Kirby noted the number of native title cases that were coming before the Court at the start of the decade had begun to fall away. He mused that this may have been, in part, because of the 1998 amendments to the Native Title Act; in part, because the basic principles post-Mabo had been settled and Indigenous communities now preferred to negotiate settlements rather than to litigate; and in part, ‘because of a diminished belief in good outcomes in the courts’.
There were two more opportunities for Justice Kirby to comment on native title in cases coming before the High Court in 2008.
Griffiths – Compulsory acquisition of native title
Griffiths v Minister for Lands, Planning and Environment was concerned with the compulsory acquisition of native title in Timber Creek, a small town roughly halfway between Katherine in the Northern Territory and Kununurra in Western Australia. The acquisition was for the purpose of granting a number of Crown Leases, one in particular being to ‘graze goats’.
At issue was the power of the Northern Territory Government to compulsorily acquire the land subject to native title, both when there were co-existing non-native title interests in the land and when there were not: the majority held it could, as long as the acquisition was not discriminatory.
The majority also held the power conferred on the Minister by the Northern Territory Lands Acquisition Act to acquire land for ‘any purpose whatsoever’, extended to acquisitions for the purposes of subsequent sale and private lease.
Justice Kirby wrote in strong dissent.
His Honour concluded there was an absence of express and unambiguous provisions in the Lands Acquisition Act to uphold ‘the unusual kind of acquisition’ of native title interests, and the Northern Territory’s notices of proposed compulsory acquisition were therefore invalid.
The majority’s reasoning could be persuasively explained if a ‘purely literal approach’ was taken to the interpretation of the Lands Acquisition Act and the Native Title Act, but that a conclusion based also on considerations drawn from legal authority, legal principle and legal policy should be preferred.
Significantly, Justice Kirby found such legal basis included the principle that:
Native title in Australia is a special, distinctive and legally unique interest that is now given recognition by Australian common and statute law …
… against the background of the history of previous non-recognition; the subsequent respect accorded to native title by this Court and by the Federal Parliament; and the incontestable importance of native title to the cultural and economic advancement of indigenous people in Australia, it is not unreasonable or legally unusual to expect that any deprivations and extinguishment of native title, so hard won, will not occur under legislation of any Australian legislature in the absence of provisions that are unambiguously clear and such as to demonstrate plainly that the law in question has been enacted by the lawmakers who have turned their particular attention to the type of deprivation and extinguishment that is propounded.
Arnhem Land Aboriginal Land Trust – Rights to exclude persons from tidal waters
In Northern Territory v Arnhem Land Aboriginal Land Trust, the central issue was whether traditional Aboriginal owners had the right to exclude fishermen and others from tidal waters within the boundaries of a grant of fee simple under the Aboriginal Land Rights (Northern Territory) Act. The litigation arose because traditional owners of parts of Blue Mud Bay in north-east Arnhem Land wished to determine their rights to exclude others from the area. This proceeding was tried in the Federal Court concurrently with a native title claim which included the tidal waters.
The majority held that the Northern Territory Fisheries Act abrogated any public right to fish in Northern Territory tidal waters and that the Fisheries Act did not confer on the Director of Fisheries a power to grant a licence under that Act which would authorise or permit the holder to enter and fish in tidal waters overlying Aboriginal land. The result was that the traditional owners had exclusive access to their intertidal zones.
Justice Kirby, agreeing with the majority, wrote in a separate judgment that this conclusion was consistent with his approach to ‘the definition, enlargement or diminution of native title rights’ that he sought to explain in Griffiths – that is, that native title cannot be extinguished except by express and unambiguous legislation
Native title in 2009
Justice Kirby’s judicial writings revealed a vision of an underlying concept that native title is holistic – an expression of communal responsibility and ownership, rather than a bundle of listed rights and activities susceptible to being chipped away piecemeal.
It was a vision that considered that native title, with basis in both the common law and the Native Title Act, is to be construed to the benefit of Indigenous communities, in light of Australia’s history and principles of international law. He understood the canon provides rights to Indigenous peoples that are ‘precarious’ and ‘inherently fragile’, but which cannot be abrogated except by clear and plain legislative intent. This latter principle is ‘a beam of light in the legal jungle’.
The reality of native title law in 2009 as developed by the High Court was:
· a high bar for continuity which seemed to lack realism about how cultures change and adapt, particularly in circumstances experienced by Australia’s Indigenous people, with forced removal from land and other oppressive effects of colonialism;
· the characterisation of native title in a way that favoured specificity over generality, rather than the more holistic conception of native title which would have left it less vulnerable to extinguishment; and
· an approach to the ‘inconsistency’ test for extinguishment, which all too readily had resulted in extinguishment of native title.
For a time, there was a lull in native title cases before the High Court.
But in 2013, Akiba v Commonwealth returned the attention of the High Court to the Torres Strait, the home of Mabo. Nearly twenty years after Mabo and its legislative response, the Torres Strait Islanders secured recognition of their right to take marine resources for commercial purposes, as part of their non-exclusive native title right rights in the sea. The extensive and comprehensive legislative controls on commercial fishing were held to regulate the rights rather than extinguish them.
Akiba was significant in the development of native title for three reasons: it recognised native title rights with a commercial character; there was a move away from over-specifying rights; and the fisheries legislation was found to regulate rather than extinguish the native title right to fish for the purpose of trade.
The holistic character of the relationship between Indigenous groups and their land, favoured by Justice Kirby, is now in play in the High Court.
The touchstone for differentiating extinguishment from co-existence, as the High Court has clearly said in a number of cases, is ‘inconsistency’. The turn to more moderation in extinguishment law in Akiba appears to be a more pronounced judicial reluctance to arrive at the conclusion of inconsistency, with a preference for co-existence and regulation over extinguishment. This was very strongly the view of Justice Kirby in his dissenting judgments.
Two other High Court cases following swiftly after Akiba continued the trend away from the harshness of extinguishment in earlier cases. Both were also unanimous decisions.
Karpany v Dietman involved the successful use of a native title defence to a prosecution for possession of undersized abalone, with the State of South Australia arguing that the native title right to fish had been extinguished by the State’s Fisheries Act. The High Court again found that the legislative regime was regulatory, not extinguishing.
Not long after, in Western Australia v Brown, the High Court had the opportunity to clarify the law of extinguishment, in the context of mineral leases granted in the Pilbara region in the 1960s. At the conclusion of mining, the land had been rehabilitated, apart from the open cut mine. This gave the High Court the opportunity to address the extinguishing effect of a statutory grant conferring exclusive possession for a limited time. In another unanimous judgment, the Court favoured co-existence over extinguishment, reiterating the idea of necessity, stating:
[I]nconsistency is that state of affairs where “the existence of one right necessarily implies the non-existence of the other”. And one right necessarily implies the non-existence of the other when there is logical antinomy between them: that is, when a statement asserting the existence of one right cannot, without logical contradiction, stand at the same time as a statement asserting the existence of the other right.
What Akiba tells us, confirmed by Karpany and Brown, is that extinguishment of native title is now a legal conclusion of last resort.
Justice Kirby’s dissenting views have now, in large part, found favour in the High Court in three unanimous decisions, handed down some ten years after the 2002 trilogy of cases in which his Honour recorded strong dissents.
Finally, the picture of native title is moving closer to that envisioned through the eyes of Justice Kirby.
Ms Raelene Webb QC was appointed President of the National Native Title Tribunal in Australia in 2013 after a distinguished career as a barrister. Just prior to her appointment Raelene was named as one of the leading native title silks in Australia. She has appeared as lead counsel in many native title and Aboriginal land matters and has advised upon and appeared in the High Court of Australia in most land-mark cases on the judicial interpretation and development of native title/Aboriginal land law since the decision of Mabo v Queensland. Raelene became a fellow of the Australian Academy of Law in August 2013. She was a recipient of the 2014 Law Council of Australia President’s Medal, in recognition of her outstanding contribution to the legal profession in Australia. Raelene has presented at many forums, both in Australia and internationally, including at World Bank Conferences on Land and Poverty.
The lecture series is named after Australia’s most iconic judge, The Hon Michael Kirby. When he retired from the High Court in 2009, Mr Kirby was Australia’s longest serving judge. He has remained active in retirement. He has served as the President of the Institute of Arbitrators and Mediators Australia and as Editor-in-Chief of The Laws of Australia. He is an Honorary Visiting Professor at 12 universities, including Southern Cross University.
Photo credit: Former High Court Judge, Justice Michael Kirby. Justin McManus, The Age. November 2010
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