Native title

By Simon Longstaff

A version of this article was first published: The Australian - 1 December 1997

As debate about native title rages across Australia, one absolutely crucial fact seems to have been barely mentioned. Although Aboriginal people claim that they have a special relationship with the land that is reflected in their traditional system of law, it is not their legal system, it is not their law that has established the existence of native title.

Instead, this is entirely a product of mainstream Australian law, as received and developed here following the settlement of Australia by Great Britain.

Given its origins in Britain, Aborigines have had no influence on the foundations of the common law. They had no say in the Australian constitutions, State and Commonwealth, that establish some of the basic protections that they now enjoy as fellow citizens and they had no representative in the parliament that passed the Native Title Act. In other words, any legal rights that Aboriginal people might enjoy today have been recognised by the same system of justice that each non-Aboriginal person looks to for his or her own just treatment under the Rule of Law.

The legal principles applied by the High Court of Australia in its decisions in the cases of Mabo and Wik are, despite all the brouhaha, fairly simple.

In Mabo the High Court confirmed that, with the settlement of Australia by Britain, sovereignty over the land mass and seas surrounding Australia (as we now know it) passed to the Crown. From that time on, the Crown had the capacity to make any law – including laws affecting the ownership and use of land; subject only to any restrictions imposed by one or other of the constitutions in force from time to time.

The Court also found that at the time of European settlement Aboriginal people had a recognisable form of native title. However, it also found that native title only remained intact for as long as the sovereign power (the Crown) chose not to do anything deliberate to change this state of affairs, for example, by giving somebody else title over the same parcel of land. Put simply, the Crown could have acted so as to extinguish native title over the whole landmass of Australia. But it didn't.

In Wik, the High Court maintained the consistency of its reasoning when it found that native title continues to survive in the gaps left unfilled by legitimate acts of the Crown. So, at first there was native title. Then the Crown issued pastoral leases (which are held under certain conditions). Where pastoral leases create legal rights for pastoralists, that are inconsistent with those of native title holders, then the Aboriginal people always lose. It's only where native title doesn't interfere with the pastoral lease that it continues to exist.

The idea behind all of this is best explained by the following thought experiment. Imagine a map of Australia where different coloured paint shows who owns the land. Before European settlement, all of the colours would have been painted by Aboriginal people. All of the colours would have been Aboriginal colours. When Britain settled Australia, it took control of both the paintbox and the brushes. From that point in time, all of the colours were non-Aboriginal. Various governments began to paint over the existing artwork. Where the earlier work was completely covered, native title was extinguished.

However, successive governments left a large number of areas unpainted. As such, the traditional Aboriginal patterns remained untouched. It is here that the common law rights of native title-holders continue to survive. In other places (such as pastoral leases) the paint is a little streaky and you can see parts of the old picture shining through the new coat of paint. In fact, the paint on these sections is not quite dry and the boundaries continue to shift a little. Still, if there is a conflict, then it is always the European paint that is found on top.

Some people cannot live with this picture and the apparent uncertainty created by these 'streaky' patches. Given a choice, they would prefer the map to have solid blocks of colour – of one kind or another. Put simply, a preference for the 'black and white' of certainty is evidence of a deep suspicion of the possibility that the same piece of land can be used by different people for complementary purposes. In considering this, we should bear in mind the fact that pastoral leaseholders do not own the land over which they seek exclusive possession.

Leaseholders are, in effect, renting their land and, like all tenants, they have to accommodate the reasonable requests of the owners. Indeed, even freehold title is subject to various legal restrictions governing how the land can be used. Few people feel compelled to march in the streets to protest the existence of easements, planning restrictions and the like. Even if we object to such curbs on our liberty, we accept that the relevant rights and responsibilities, in relation to land use, arise under our established system of law. Which returns us to the start of this article. The limited rights claimed by Aboriginal people arise under exactly the same system of law!

There was a time when the Crown (the various Australian governments) might have solved the problem of 'streaky' maps by firmly acting to paint over all of the remaining native title. So, why not do this now? Once again, it is mainstream law – designed to protect us all, irrespective of race – that limits this option. It is the Australian Constitution that prevents the Crown from appropriating the property of citizens without the payment of just compensation. If this provision of our Constitution doesn't apply to one group of citizens then it doesn't apply to any. Few people, in the bush or the city, would seriously wish that this basic protection be removed.

So, here we are in the midst of the debate about native title trying to reconcile ourselves to the fact that our own system of laws has caused apparent uncertainty. In my opinion, the situation is clear enough, but I accept that others do not agree and that they are genuinely confused and uncertain.

As such, the Federal Government has sought to respond with its '10 Point Plan'. The aim of this plan is to codify some of the legal rights and responsibilities that exist under common law and that are thought to have the potential to clash when native title co-exists with other forms of title. Constitutionally valid acts of parliament override the common law – something that occurs all the time – as can be seen at work in the current controversy over the Victorian Government's plan to replace common law rights to workers' compensation with specified legislated rights.

If the 10 Point Plan is enacted, then there will be “bucketloads of extinguishment” as common law rights are replaced by their legislated alternative. Some might argue that this would merely be a change in form. However, it is the clear opinion of Aboriginal people that the proposed legislation will lead to a significant reduction in the rights they once enjoyed. If this is so, then it is very likely that the enactment will be challenged successfully in the High Court on the grounds that the Australian Constitution establishes that the Federal Parliament may only make laws for the benefit of Aboriginal people. Some lawyers have argued that Parliament does not have the power to make Aboriginal people worse off than they would otherwise be.

Whatever the Court may decide, the whole debate has thrown up some grossly unpleasant rhetoric – not least in relation to various charges of racism. One cannot help but observe that parties on both side have been incredibly loose in their use of language. For a start, it should be recognised that the Commonwealth Government would most likely have been driven down something like its current path – whatever the race or condition of people holding a form of title that seems to have created such anxiety.

In this regard, we should be charitable enough to recognise that it is the spectre of uncertainty (largely unreal as it is) that is driving this debate. If the problem arose because of some special standing of people with red hair, then I am sure that they would be the focus of attention. Given this, I think it unfair to suggest that the government is motivated by an impulse to discriminate against Aboriginal people per se.

Having said that, we cannot be blind to the fact that it is no mere accident that the only people with common law rights to native title are Aborigines and that members of one race, alone, will be the losers if this plan proceeds.

We should also understand that the significance of land, for Aboriginal people, goes well beyond anything to do with property rights as we usually understand them. Most of the rights and responsibilities, that Aboriginal people recognise amongst themselves, are in relation to the ability to sing songs and perform ceremonies of a kind that they sincerely believe to be necessary to sustain the world. The 10 Point Plan is not racist in intent, but its effects are so precise in their focus and significant in their impact that it is discriminatory in its consequences.

Mr Howard and his supporters, must be deeply wounded by the suggestion that they are racists. I am sure that they do not intend to harm Aboriginal people. But they do – and in a way that few of us can really understand.

Finally, there is a very subtle point of symbolism to be understood in all of this. The common law rights of Aboriginal people, as native title-holders, pre-date the time of European settlement. These rights were not granted by the Crown but survived the change in sovereignty. As such, they are rights that we recognise but did not bestow. To replace them with legislated rights is to extinguish something original and replace it with something derived. Even if the outward form remained largely the same, the substance would be radically different and diminished for a people who have lived on this continent for over 50,000 years.

Can we not live with this particular legacy of our own system of justice? Can we not find enough good will and flexibility to live with the ambiguity. Given the pace and nature of change affecting our society, we have to make these adjustments in virtually every other aspect of our lives – so why not this?