Mabo & Wik

Background

In June 1992, the High Court in the Mabo case recognised native title at common law. For the first time, Australian law acknowledged that Aboriginal rights and interests in land had survived the Crown's acquisition of sovereignty in 1788. Mabo presented an opportunity to settle the question of land justice once and for all.

The Australian Parliament moved quickly to establish a legislative framework for native title, under the Native Title Act 1993. Ten years on however, the promise of the Native Title Act has failed to deliver significant outcomes for Indigenous people.

Since the institution of the Native Title Act amendments in 1998 by the Howard Government, native title has been wound back to strengthen the position of other tenures, while denying protection of Indigenous rights and interests in land.

The Myth of terra nullius

"The fiction by which the rights and interests of indigenous inhabitants of land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country."

Australia was settled on the basis of terra nullius - that the land was uninhabited. International law in 1788 held that sovereignty could only be acquired through conquest, cession, and occupation of territory that was terra nullius. In the case of conquest and cession, the colonising nation was legally obliged to negotiate full and just reparations and compensation to the indigenous population for all lands alienated.

Declaring terra nullius removed the need to negotiate with the indigenous people. The colonisers justified their land acquisition policies by claiming that the Aborigines were too primitive to be actual owners and sovereigns, and that they had no readily identifiable hierarchy or political order which the British Government could recognise or negotiate with.

In 1992, the High Court in Mabo finally rejected the racist basis of terra nullius and the legal fiction on which this country was settled. Brennan J stated in Mabo:

"Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted."

Mabo

On 3 June 1992, the High Court overturned the doctrine of terra nullius and recognised that Indigenous rights and interests in land had survived the Crown's acquisition of sovereignty and, in some cases, continued to exist. The High Court's rejection of terra nullius cleared away a fundamental barrier in the recognition of Indigenous land rights. It allowed an important new concept 'native title' to emerge in Australian common law.

After years of work by Eddie Koiki Mabo and others, the High Court determined that the Meriam people were 'entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands' in the Torres Strait.

The judges in Mabo drew heavily from overseas jurisdictions, such as Canada, New Zealand, and various former British African colonies. These jurisdictions had also inherited the English common law system, but had a history of acknowledging Indigenous rights and interests in land. Mabo brought Australian common law into line with overseas precedents. Because Australia had fallen behind in its recognition of common law principles, Mabo was not a radical decision, but a conservative one.

Justice Brennan wrote the main judgement in Mabo and gave a detailed account of the concept of native title at common law. Some key aspects of native title at common law developed in the Mabo case are outlined below:

What is native title?

• Native title 'is not an institution of the common law' but has its source in Indigenous people's relationship to land prior to the Crown's acquisition of sovereignty.
• Native title is sui generis, or unique, because it reflects the rights and entitlements of Indigenous peoples according to their own laws. It was also determined that native title may be held by a community, group or individual depending on the content of traditional laws and customs.

The issue of sovereignty

One of the most important features of the judgment was that the concept of Crown Sovereignty was upheld. Justice Brennan was adamant in arguing that the concept of native title could not 'fracture the skeleton' of Australian common law.

This is because Australia’s entire parliamentary and judiciary system was established as a result of the Crown acquiring sovereignty. Questioning this would clearly be challenging the legitimacy of the High Court.

Nevertheless, native title rights could co-exist with other tenures because the Crown's acquisition of sovereignty had given it a radical title but not full beneficial ownership of land. Therefore, native title operated as a burden on the Crown's radical title and was vulnerable to alienation by the Crown.

The issue of whether Aboriginal and Torres Strait Islander peoples ever legitimately lost their sovereignty was not directly dealt with in the Mabo case.

Extinguishment

The High Court held that native title could be extinguished by:

• The valid exercise of sovereign power;
• Voluntary surrender of native title to the Crown; or
• The relevant clan or group ceasing to acknowledge laws and customs, losing its connection with the land, or on the death of the last member of the group or clan

The doctrine of extinguishment most highly contravenes Indigenous relationships to country. Indeople don't accept that view that their rights and interests in land can be legislated away with.

By a valid exercise of sovereign power

According to the High Court, two hundred years of settlement had exposed native title to extinguishment by certain legislative or executive acts of sovereign power. In keeping with the universally accepted test in the common law world, the Court affirmed the requirement of a 'clear and plain' intention when extinguishing native title.

The High Court also declared that native title might be extinguished by inconsistent Crown grant irrespective of clear and plain legislative authority. This aspect of the judgement attracted significant international and local criticism in its abandonment of fundamental common law principles. Legal expert on native title, Kent McNeil writes:

"The rule that native title can be extinguished by inconsistent grant is not supported by the common law, and in fact contradicts fundamental common law principles. Its source in Australia is none other than the Mabo No. 2 decision itself."

In the context of the provisions set out in Article 17 of the Universal Declaration of Human Rights and the Racial Discrimination Act 1975, extinguishment of native title by inconsistent grant or appropriation by the Crown, appears to violate the human right of the indigenous peoples in Australia not to be arbitrarily deprived of their legal rights to land.

Further, this is racially discriminatory, as the interests in land of other racial groups cannot be extinguished in the same way. Where Indigenous rights are concerned, the Court created an exception to the rules governing the treatment of other proprietary interests.

The tide of history metaphor

"When the tide of history has washed away any real acknowledgement of traditional laws and any real observance of traditional customs, the foundation of native title has disappeared."

The majority judgement in Mabo determined that native title would cease to exist if traditional connection to land was lost. Brennan's 'tide of history' metaphor is highly problematic and has induced too much room for interpretation.

Wik

In December 1996, the High Court handed down its decision in the Wik case. The Court upheld the fundamental principles outlined in Mabo relating to the recognition of native title at common law.

More importantly, the majority introduced the notion that native title could co-exist with other interests, in this case, pastoral leases. The native title rights of the Wik and Thayorre people had not been extinguished by the Queensland government's grant of pastoral leases and could therefore co-exist with the rights of the pastoralist to the extent of any inconsistency.

Pastoral leases

It is important to note that the High Court upheld the view that ordinary leases could still extinguish native title. The leases considered in the Wik case were not leases in the ordinary sense. The fact that the pastoral leases had been granted by the Queensland government meant that the leaseholder did not have a right of exclusive possession. Therefore, the two interests could co-exist.

Pastoral leases cover approximately 42% of Australia's land area, and include large tracts of land in remote locations - areas where Aboriginal peoples are most likely to have maintained their traditional connection with land.

According to anthropologist Peter Sutton who worked on the Wik case, the pastoral industry generally allowed for the co-existence of Aboriginal people and graziers. Pastoral life was more like hunting, and unlike other areas where Aboriginal people were driven off the land, pastoral leases covered land areas suitable for open-range grazing.

Aboriginal knowledge of country was important to the new graziers, who not only employed them but usually allowed them to maintain their traditional connection to land during the off season. Of all the colonists, the pastoralists offered the form of colonisation most compatible with the maintenance of Aboriginal culture.

In the Wik case, one of the pastoral properties considered covered an area of 2830 sq kms, with a stock carrying capacity of one beast per 60 hectares. The pastoralists had not built any dams, fencing or dwellings, and seasonal workers were employed for mustering in the dry season. The Wik peoples could carry on their traditional activities with minimal contact with the leaseholders.