August 24th 2002

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COVER STORY: Embryo experiments: are there any limits?

ALP's problems deeper than pre-selections and branch-stacking

Zimbabwe: Mugabe aggravates drought crisis

STRAWS IN THE WIND: Dizzy with success / Angry amnesiacs

EMBRYO EXPERIMENTATION: Consuming our unborn is indefensible

LAW: High Court judgment deepens native title confusion

General Cosgrove was wrong on Vietnam (letter)

Why the stock market plunged (letter)

Snowy River plan damages Murray basin (letter)

Infrastructure savings (letter)

COMMENT: Whose voice can be heard?

VICTORIA: Public forces backdown on Victorian sex zone plans

POPULATION: Time to set the record straight

COMMENT: Can the ABC be saved from itself?

ECONOMY: The Reserve, interest rates and inflation

ASIA: Taiwan's banking system under siege

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High Court judgment deepens native title confusion

by Richard Egan

News Weekly, August 24, 2002
If anyone was hoping that the long-awaited High Court decision on the Miriuwong-Gajerrong native title claim would give certainty either to the claimants and other interested parties in that case or in regard to native title generally then they would be disappointed.

The majority decision of Gleeson CJ, Gaudron J, Gummow J and Hayne J overturned substantial parts of the judgment given by the Full Bench of the Federal Court on this claim in March 2000. Rather than deciding whether and to what extent native title rights exist in the claimant area the High Court has sent the matter back to the Federal Court for further hearings.

Unable to decide

In relation to several significant questions of fact, the High Court professed itself unable to decide on the evidence - despite, as McHugh J pointed out in his dissenting judgment, a total of 98 days hearing of this case at first instance on appeal to the Full Court - and left it to the discretion of the Full Court to decide whether to permit parties to introduce new evidence at the remitted hearing.

The High Court majority did make some firm decisions. There is no native title right to minerals or petroleum (at least in Western Australia). There is no general native title right to preserve and protect cultural knowledge, as this is not an interest in land as such. There is no native title right to exclusive fishing. Some special leases and some acts of resumption or vesting of land extinguished native title.

However, in relation to the key issues of pastoral and mining leases and their effect on native title the judgment has really just returned us to the uncertainty first made apparent in the Wik decision. The majority have affirmed the notion that native title can be usefully understood as a 'bundle of rights'. One of these rights - the right to control access to and use of land - is extinguished by the grant of a pastoral or mining lease over that land. However, other rights making up the "bundle" will survive if they are compatible with the legal rights given to the lessee under a pastoral or mining lease.

The majority gives few examples. They affirm that in many cases, the right to hunt or gather on land may survive a lease. They suggest that the right to burn the land for environmental purposes probably doesn't survive the grant of a pastoral lease.

The task given to the Full Court in its rehearing of this case - and by implication to all other Courts hearing native title cases - is to carry out a precisely detailed assessment of the various rights in connection with specific areas of land under traditional laws and customs. Then the Court must establish in the light of specific statutes, and grants of land or interests in land under those statutes, what conflict there is between the native title rights and the statutory rights. Only then can the Court determine what native title rights have survived.

The fact that the High Court didn't find sufficient evidence in the transcripts of 98 days of lower court hearings on the Miriuwong-Gajerrong case to decide these questions is indicative of the likely expenditure of time and resources necessary to bring any native title claim to a conclusion through the judicial process.

Mr Justice Kirby concurred in the orders of the majority but expressed his support for a more expansive and generous interpretation of native title rights. He disagreed with the majority in relation to the right to preserve and protect cultural knowledge, the circumstances under which native title is clearly extinguished, and the role of international and human rights law in interpreting the Native Title Act.

The remaining two justices, McHugh J and Callinan J, wrote separate dissenting judgments but concurred in proposing orders to dismiss the claimants' appeal. Justice Callinan found that the grant of pastoral and mining leases extinguished native title. His assessment of the state of the law of native title is worth quoting in full.

"Mabo [No 2] was a brave judicial attempt to redress the wrongs of dispossession. But its recognition of native title has involved the courts in categorising and charting the bounds of something that, being sui generis, really has no parallel in the common law.

"The Court has endeavoured to find a way of recognising, and to a degree protecting, that anomalous interest without unduly disturbing the law of Australian property. The results of this enterprise can hardly be described as satisfactory.

"The decisions of this Court and of lower courts have resulted in something that is not strictly property, as common lawyers would understand it, being regarded as a burden on the Crown's radical title. Long settled understandings about land law relating to exclusive possession and leases have been questioned. Parliament has been compelled to intervene, repeatedly, to secure the validity of acts that were never before thought to be problematic. And we now have a body of law that is so complicated, shifting and abstruse that it continues to require the intervention of this Court to resolve even the most basic issues, such as the effect of freehold or leases on native title.

"Judging from the submissions to this Court and the native title legislation that we have had to consider, few people, if any, have been able to thread this labyrinth of Minos unscathed. To these drawbacks flowing from the recognition of native title may be added others: considerable uncertainty has been created; commercial activity and therefore national prosperity has been inhibited; much time and money have been expended on litigation; and, I fear, the expectations of the indigenous people have been raised and dashed."

Native title

In a separate judgment handed down the same day, the High Court determined by a majority of 6 (only Kirby J dissenting) that the grant of a lease under the Western Lands Act 1901 (NSW) did confer exclusive possession on the lessee and therefore extinguished native title.

This case highlights once again the differential impact of native title on states such as Western Australia compared with New South Wales and Victoria, where native title has more generally been held to have been extinguished. There are still 130 outstanding native title claims in Western Australia and about 11,500 mining applications held up pending native title negotiations.

There is no sign yet that the complexities and uncertainties unleashed by the "brave judicial attempt" of Mabo have been resolved either by subsequent judicial decisions or by the Native Title Act and its successive amendments.

  • Richard Egan

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