Sir Ninian Stephen Annual Lecture 2003: Noel Pearson

and its failure to judge the Yorta Yorta people?sclaim in accordance with this body of law

I will close with some views about what I think needs to be done in all justice to indigenous Australians.

But before I undertake this critique, let me first set out my understanding of what Mabo3 and native title should have meant to Australians. It is a view of the historical meaning of native title – and the historic compromise that it should represent – which I have expressed on many occasions over the past decade. My most recent articulation of the three principles of native title was in the Hawke Lecture4 in November last year. This is what I said:

The High Court told us on 3 June 1992 that our understanding of our legal history was incorrect. The true history, according to the High Court, was that at the moment of sovereignty in 1788 when the British Crown unilaterally assumed sovereignty over the Antipodean continent the Aboriginal peoples in truth became subjects of the British Crown.

At the moment of sovereignty, as subjects of the British Crown in occupation of their traditional homelands and entitled to the protection of the new land law brought on the shoulders of the settlers from England, the indigenous peoples became in British law no less than the comprehensive owners of the entire continent. Native title existed wherever Aboriginal people held traditional connections with their homelands. The High Court told us that their dispossession of those titles occurred over the next204 years through a process of “parcel by parcel”extinguishment.

This legal truth about the foundations of the country was obscured for two centuries and that obfuscation of the legal truth resulted in the dispossession and removal and suffering and death of numerous Aboriginal peoples. Coming to determine the question of whether the Aboriginal people had rights to land under the law of England imported here in 1788, the High Court had to reconcile two realities, the reality of English law and its respect for the position of indigenous peoples who become subjects of the British Crown upon sovereign acquisition, and the reality of 204 years of history where numerous tribes and peoples have been dislocated and dispossessed and indeed, in some cases, completely annihilated.

The problem facing our seven High Court Judges when they came to determine the Mabo decision was this: how was this country going to reconcile the truth of its English legal traditions with the realities of history and all of the accumulated title that had taken place over two centuries? The High Court articulated in Mabo two important principles of native title law which really form the cornerstones of compromise, the cornerstones of a proposed settlement put before us by our judicial elders.

The first part of that compromise, if we are truthful, was the most unequivocal. The first part of the compromise said that the titles accumulated over the last two centuries inhering in the settlers and their descendants, could not now be disturbed. Those titles were now indefeasible. Even if those titles were gained in circumstances of regret and denial of right, the Court said that the accumulation of these many millions of titles over two centuries could not now be disturbed. The first limb of native title law in this country is to confirm the privileges and titles of the settlers and their descendants. If we were certain about anything in the wake of the Mabo decision, we were certain of that fact, that the Courts in this country and the common law of this country, would not allow us to derogate from those accumulated privileges.

The second principle of native title law articulated by the Court is very simple also. It proposed that all of those lands that remained after 204 years, unalienated, was the legal right of the traditional owners. Whatever land had not been alienated and in the most settled parts of the country, these lands are few and far between indeed. If you want to find unalienated Crown land on the east coast of Australia you would need to go down near the mangroves and find a block of unallocated state land or down near the dump or some inhospitable wedge of land in some remote corner of the countryside and of course most generously, in the most deserted regions of our continent.

That was what was proposed by the High Court in theMabo decision. Let me put it colloquially: the whitefellas get to keep everything they have accumulated, the blackfellas should now belatedly be entitled to whatever is left over. The imperative flowing from the Mabo decision in 1992 was the swiftest, unambiguous and ungrudging delivery of that remainder to the indigenous peoples entitled to that belated recognition. In some of our states we have yet to get one hectare, we are yet to get one acre, we are yet to get one square metre of land under a native title determination after 10 years.

The third part of native title law, the third part of the compromise was put forward by the High Court in 1996 in the Wik5 decision. It said that there are some large areas of land covered by pastoral leases and national parks where native title may co-exist with the Crown Title. The Court ruled by a majority of four to three that in that co-existence, the Crown Title prevails over the native title if there is any inconsistency.

So those are the three limbs of native title law as articulated by our High Court in this country. The whitefellas keep all that is now theirs, the blackfellas get whatever is left over and there are some categories of land where there is co-existence and in the co-existence the Crown Title always prevails over the native title. That is the proposition put forward to us as Australians by our judicial elders for our consideration, to see whether as a people we would embrace those terms as a just compromise 204 years after the initial failure of recognition.

Have we as Australians embraced the corners of that compromise? Have we delivered on the justice of that compromise? Have we been faithful, given the opportunity we have under our civilised institutions, our constitution and our common law heritage, have we lived up to that opportunity? Because it seems to me it will fall upon us as a generation, the question will fall upon us as a generation as to whether we showed fidelity to the terms of that compromise or we wasted the once-in-a-nation’s-lifetime opportunity to settle a question of fundamental grievance, a question that plagues too many nations and societies right across the globe, as long as the questions remain unfulfilled and unanswered.

Then the High Court delivered its judgment in Yorta Yortain December 2002 and put the lie to my interpretation of the meaning of native title. The three principles of native title law are not that the white fellas get to keep all that they have accumulated, that the blackfellas get what is left over and they share some larger categories of land titles with the granted titles prevailing over the native title. Rather the three principles of native title are that the white fellas do not only get to keep all that they have accumulated, but the blacks only get a fraction of what is left over and only get to share a coexisting and subservient title where they are able to surmount the most unreasonable and unyielding barriers of proof – and indeedonly where they prove that they meet white Australia?scultural and legal prejudices about what constitutes “real Aborigines”. To the Australian courts charged with the responsibility of administering the historic compromise set out in Mabo, the Yorta Yorta Peoples were not sufficiently Aboriginal to get one square metre of what was left over after the whites had taken all that they wanted.

After all, let us think about what native title claims are all about today. Native title claims are made in respect of lands that are left over. They simply cannot be made in relation to titles owned by other people. No successful native title claim can be made which diminishes the existing title of any other Australian. In other words,noone can lose a legal right in the event that a native title claim succeeds.

And yet not only is there political and social resistance to these claims for leftover land, but there is now significant judicial and legal impediment to the working out of this belated and meagre land justice. The present High Court does not know what it is doing with the responsibility which their predecessors assumed with Mabo.They have rendered a great disservice to indigenous Australians and to our past and future as a nation. For in their flawed and discriminatory conceptualisation of native title and in their egregious misinterpretation of fundamental provisions of the Native Title Act, they are destroying the opportunity for native title to finally settle the outstanding question of indigenous land justice in Australia.

Let me now turn to the first problem:

The High Court’s misinterpretation of the definition ofnative title in section 223(1) of the Native Title ActThe enactment of native title legislation in the wake ofthe High Court?s 1992 decision in Mabo (No 2) was the subject of an intense national political and legislative debate during 1993, in which Aboriginal advocates participated vigorously.What were we defending in that process and what did we think that we had achieved with the Commonwealth government under Prime Minister Paul Keating?We thought, and I am sure all members of Parliament and all Australians who followed the proceedings thought, that the whole exercise was about preserving the rights declared under the common law of Australia. In other words we thought that the Mabo decision, and the rights and interests that flowed from that decision, were being recognised and protected in Commonwealth legislation. The chief reason for this recognition and protection in Commonwealth legislation was to protect native title from arbitrary extinguishment by hostile governments.

So we – and I expect most people in the audience tonight with even the most scant knowledge of native title –thought that the Native Title Act preserved the Mabodecision. And we thought that all claims for native title that would be made under the framework of the new legislation would be adjudicated according to principles ofthe High Court?s decision in Mabo and the body of common law of which it forms a part.

But this is not what the High Court has determined in the cases leading up to, and now settled in, Yorta Yorta.Whilst the High Court denies that it is approaching native title as a creature of the Native Title Act, nevertheless it has given an independent role to the definition of native title set out in section 223(1) of the Act. The High Court has taken the legislation as the starting point and the ending point for interpreting native title.

Indeed the relevance of the Mabo decision to understanding native title is almost rejected by the court. In their joint judgment Gleeson CJ and Gummow and Hayne JJ remarkedas follows in relation to Olney J?s analysis in hisjudgment at first instance6:

Let me repeat this astounding last sentence: “It may bethat that undue emphasis was given in the reasons to what was said in Mabo [No 2], at the expense of recognising the principal, indeed determinative, place that should be given to the Native Title Act.”

The majority explain their approach to section 223(1) as follows7:

To speak of the “common law requirements” of native title is to invite fundamental error. Native title is not a creature of the common law, whether the Imperial common law as that existed at the time of sovereignty and first settlement, or the Australian common law as it exists today. Native title, for present purposes, is what is defined and described in s. 223(1) of theNative Title Act. Mabo [No 2] decided that certain rights and interests relating to land, and rooted in traditional law and custom, survived the Crown’s acquisition of sovereignty and radical title in Australia. It was this native title that was then “recognised, and protected”8 in accordance with theNative Title Act and which, thereafter, was not able to be extinguished contrary to that Act9.

The Native Title Act, when read as a whole, does not seek to create some new species of right or interest in relation to land or waters which it then calls native title. Rather, the Act has as one of its main objects10 “to provide for the recognition andprotection of native title” (emphasis added), which is to say those rights and interests in relation to land or waters with which the Act deals, but which are rights and interests finding their origin in traditional law and custom, not the Act. It follows that the reference in par (c) of s. 223(1) to the rights or interests being recognised by the common law of Australia cannot be understood as a form of drafting by incorporation, by which some pre-existing body of the common law of Australia defining the rights or interests known as native title is brought into the Act. To understand par (c) as a drafting device of that kind would be to treat native title as owing its origins to the common law when it does not. And to speak of there being common law elements for the establishment of native title is to commit the same error. It is, therefore, wrong to read par (c) of the definition of native title as requiring reference to any such body of common law, for there is none to which reference could be made.

This is how section 223(1) defines “native title” and “native title rights and interests”: the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

1. (a)  the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
2. (b)  the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
3. (c)  the rights and interests are recognised by the common law of Australia.

In the broadest terms there are two possible meanings that could be attributed to this definition:

Firstly, the definition could be seen as a faithful and accurate reflection of the meaning of native title under the common law of Australia. In other words the definition did not in any way alter the common law meaning of native title: it neither added to nor diminished its meaning and requirements for its proof.

Secondly, the definition could be seen as somehow altering or replacing the meaning of native title under the common law of Australia. In other words the statutory definition either added to or diminished its meaning and requirements for its proof. It either made it easier or harder to prove.

The second possibility – that the statutory definition has somehow altered or replaced whatever meaning it may have had under the common law of Australia – seems to be what the court has decided.

And when I say “court” I mean all of the members of thecourt including Kirby and Gaudron JJ. All members of the High Court other than McHugh J (to whose judgment I will turn in due course) have interpreted section 223(1) as defining native title to the exclusion of its common law meaning.

But it is not possible that the definition of native title in the statute has changed from its common law meaningbecause this may involve “just terms” problems undersection 51(xxxi) of the Constitution. This is as yet an undeveloped analysis, but it seems to me that if native title has been added to or detracted from by its definition in section 223(1) of the Native Title Act then this would necessarily involve an acquisition of property – either property belonging to the native titleholders if the statutory definition denied them their native title rights that would have existed at common law, or property belonging to the Crown if the statutory definition denied it beneficial title to land where native title wouldotherwise have been extinguished at common law. The “just terms” provision in section 18 of the Native Title Act is not intended to cure this kind of constitutional problem, directed as it is to ensuring just terms for the acquisition of property occasioned by any “past act attributable to the Commonwealth”.

But there are even more compelling reasons why the approach of the High Court to its interpretation of section 223(1) is wrong.

The High Court?s interpretation is patently at odds withthe intention of Parliament, both during the time of the Keating government in 199311 and at the time the Native Title Amendment Act was passed by the Howard government in 199812. Both Parliaments understood that their respective

The Explanatory Memorandum to the Native Title Bill 1993, Part A at page 1 stated as follows:

The Commonwealth?s major purpose in enacting thislegislation is to recognize and protect native title (see clauses 3 and 9). Native title is defined as the rights and interests that are possessed under the traditional laws and customs of Aboriginal peoples and Torres Strait Islanders in land and waters and that are recognized by the common law (clause 208). The Commonwealth has sought to adopt the common law definition. (my underline emphasis)

The Explanatory Memorandum to the Native Title Bill 1993, Part B at p 76 stated as follows:

Subclause (1) of the definition uses terms similar to those used by the High Court of Australia in Mabo in defining native title. This definition is not a codification of the common law.

The Explanatory Memorandum to the Native Title Amendment Bill 1997 stated as follows at para 3.7:

The Commonwealth Parliament?s major purpose in enacting the NTA was to recognize and protect native title (see sections 3 and 10). The NTA adopted the common law definition of„native title? as being the rights and interests possessed under the traditional laws and customs of Aboriginal peoples and Torres Strait Islanders in land and waters, and recognized by the common law (section 223). The decision in Mabo (No 2) referred only to native land title, but the NTA did not preclude the possibility that native title laws were preserving the common law rights articulated in the Mabo decision.

McHugh J?s short judgment in Yorta Yorta sets out the whole truth and in order to comprehend the travesty of the HighCourt?s misinterpretation, the judgment must be extractedat length:

Given the decisions in Yarmirr13 and Ward, the [position of Gleeson CJ, Gummow and Hayne JJ in theirYorta Yorta judgment] concerning the construction of the Act must be accepted as correct.

However, I remain unconvinced that the construction that this Court has placed on s. 223 accords with what the Parliament intended. In Yarmirr, I cited statements from the Ministers in charge of the Act when it was enacted in 1993 and when it was amended in 1997. They showed that the Parliament believed that, under the Native Title Act, the content of native title would depend on the developing common law. Thus, Senator Evans told the Senate in 199314:

“We are not attempting to define with precision the extent and incidence of native title. That will be a matter still for case by case determination through tribunal processes and so

rights and interests may also exist in relation to waters, including offshore waters. This remains an unresolved issue. (my underline emphasis) on. The crucial element of the common law is the fact that native title as such, as a proprietary right capable of being recognised and enjoyed, and excluding other competing forms of proprietary claim, is recognised as part of the common law of the country.” (emphasis added)

Similarly, Senator Minchin told the Senate in 199715:

“I repeat that our [A]ct preserves the fact of common law; who holds native title, what it consists of, is entirely a matter for the courts of Australia. It is a common law right.” (emphasis added)

Section 12 of the Native Title Act 1993 also made it clear that the content of native title under that Act was to be determined in accordance with the developing common law. Section 12 provided:

“Subject to this Act, the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth.”

In Western Australia v The Commonwealth (Native Title Act Case)16, however, this Court held that s 12 was invalid. In the Native Title Act Case, six justices of the Court said:

“If s. 12 be construed as an attempt to make the common law a law of the Commonwealth, it is invalid either because it purports to confer legislative power on the courts or because the enactment of the common law relating to native title finds no constitutional support in s. 51(xxvi) or (xxiv).”

Section 12 has now been removed from the statute book. But its enactment in the 1993 Act shows that the Parliament intended native title to be determined by the common law principles laid down in Mabo v Queensland [No 2]17, particularly those formulated by Brennan J in his judgment in that case. When s. 223(1)(c) of the 1993 Act referred to the rights and interests “recognised by the common law of Australia”, it was, in my view, referring to the principles expounded by Brennan J in Mabo [No2].

But this Court has now given the concept of “recognition” a narrower scope than I think the Parliament intended, and this Court’s interpretation of s. 223 must now be accepted as settling the law. As a result, the majority judges in the Full Court erred when they approached the case in the manner that they did. (my underlined emphasis)

McHugh J?s understanding of what section 223(1) meant is myunderstanding of what was meant. It was Prime MinisterPaul Keating?s and Senator Gareth Evans? understanding of what was meant in 1993. It was Prime Minister JohnHoward?s and Senator Nick Minchin?s understanding of whatwas meant in 1998.

Amazingly, despite McHugh J?s clear statement that his colleagues had settled upon what was a “narrower”interpretation of section 223 – contrary to Parliament?sintention – he capitulated to this narrower interpretation and was prepared to accept it as settled law. This in itself is instructive of the abandonment of indigenous Australians expecting the abiding diligence of the courts. McHugh J was dealing here with a profound question of fundamental property rights of Australian citizens entitled to rigorous application of the rules of law when they bring their claims before the courts for adjudication. It is hard to imagine any other area of law where a judge would so lightly abandon his or her conviction about an interpretation of a statutory provision which is pivotal not just to the instant case, but to all future cases to come before the courts.

Even if McHugh J is prepared to accept this narrow interpretation of the Native Title Act to the detriment of indigenous interests – it can hardly be expected of indigenous Australians that they accept this derogation of their already meagre rights with such equanimity.

The High Court’s misinterpretation of how the common lawtreats traditional indigenous occupants of land when the Crown acquires sovereignty

At the heart of this whole misconception is our understanding of how the common law treats traditional indigenous occupants of land when the Crown acquires sovereignty over their homelands.

Prior to Mabo (No 2) it was unclear what effect the act of State constituting the acquisition of sovereignty by the Crown would have on the position of indigenous occupants of land made subject to the change in sovereignty.

It is clear that it was open to the Crown to acquire not only the radical title to the territory occupied by indigenous inhabitants, but it could also expropriate the beneficial title to the land and thereby dispossess the indigenous inhabitants of their title. Under the act of State doctrine this expropriation needed to occur at the time of the acquisition of sovereignty. Such an expropriation would have been municipal courts.

Following annexation however, if expropriated the private title inhabitants, it could not do so subsequently except under authority of legislation. This is because the indigenous peoples would have become British citizens and entitled to the protection of the imported common law which had now become the law of the land. Any seizure of land against the indigenes at some time following annexation would have amounted to the commission of an unlawful act of State on the part of the Crown against its own citizens. This was prohibited by the law and the Crown had no such authority to expropriate land except with legislative authority.

This statement of the law concerning acts of State in this context is uncontroversial.

The question that was controversial before Mabo (No 2) was whether the survival of Aboriginal land rights following a change in sovereignty required a positive act of recognition by the Crown of the original indigenous title, or whether there was a presumption of continuity of indigenous title. The authorities preceding Mabo fell into two categories, which the Canadian scholar, Professor Kent McNeil, labeled in his landmark work Common Law Aboriginal Title18, as those falling under the “doctrine of recognition”19 and those falling under the “doctrine of continuity”20.

In the absence of any positive act of recognition of indigenous title on the part of the Crown in the settlement of its Australian colonies – if the High Court had followed those cases that fell under the “doctrine of recognition”,then the result in Mabo (No 2) would have been that there is no native title in Australia. Instead the High Court ruled, consistently with rulings across the common lawworld, that those cases falling under the “doctrine of continuity” represent the correct position in Australian law.

Again, the correctness of the application of the “doctrine of continuity” is now also uncontroversial. It is settledlaw in Australia21 and Canada and all of the leading cases in both of these jurisdictions are founded upon the acceptance of continuity.

But now that we know that the rights of indigenous inhabitants of land at the time of the acquisition of sovereignty, in the absence of any express abrogation, are presumed to continue under the new sovereign and the new legal order, there is a further unresolved question – which the courts have not asked. The question is this: what is it that continues after sovereignty?

Contrary to the simplistic assumptions that have been made by legal academics, practitioners and judges in answer to this question, there are yet extremely important principles to be resolved in answer to the question of „what continues?? after the change in sovereignty.

There are at least two possible answers to this question. And all of the assumptions that have been made in Australian law answer this question in this first way: it is the rights and interests established by the group?straditional laws and customs which continue after annexation.

But there is another, more subtle and correct way of answering the que