Anxious native title lawyers, waiting 18 months for last week's High
Court decisions, sometimes remarked 'the High Court is over Mabo'.
They were apprehensive that the Court would resolve conflicts between
the title discovered in 1992 and two centuries' worth of property law in a
manner seriously disadvantageous to native title.
The seeds of this approach were present in Mabo, although they are not
often remarked on, and were strengthened by discriminatory 1998 amendments
to the Native Title Act. The lawyers' apprehension in part reflected
insistence by the judges during the appeals that they focus on the
legislation and not the cases (Mabo and Wik) which preceded it.
In many respects, the decisions in WA v Ward and Wilson v Anderson
confirm the lawyers' pessimism. However, they also contain some surprises.
It has been widely reported that the Court ruled in Ward that native
title claims cannot be made to minerals and petroleum in the ground. This
is the practical result for most Australian jurisdictions. The Court
interpreted a Western Australian statute vesting property in situ minerals
in the Crown as not allowing continued existence of native title to the
minerals. There are similar statutes elsewhere: for example, Justice
Drummond reached the same conclusion about Queensland in an early round of
the Wik litigation.
However, in New South Wales, where the device of asserting Crown
property to minerals has not been used except for some coal, some minerals
have been granted to private landowners while others have been 'reserved'
to the Crown.
The Ward ruling cannot apply to these reserved minerals. Native title
claims to in-ground resources in New South Wales are unlikely to succeed
as a matter of evidence - because people have trouble proving traditional
rights to use them - rather than as a matter of law.
Perhaps surprisingly, unlike the Full Federal Court, the High Court has
left open the question of whether native title rights survive to the
surface of land held under mining leases. Where Aboriginal people prove
traditional hunting rights to mining lease land, these might survive
because a mining lease amounts to the grant of exclusive rights to mine,
not exclusive rights to occupy, the land. This conclusion is likely to
apply elsewhere in Australia, and the Court has not made an exception to
it for large projects like the Argyle diamond mine.
The Court's general approach confirms that native title law is no place
for cross-cultural tolerance. This has been evident in other court
decisions. Unlike north American jurisdictions, which tended to treat
'Indian' or 'aboriginal' titles as equivalent to full ownership,
Australian law (with the significant exception of the trial judge, Justice
Lee, in the Ward case) insists that the rights conferred by 'native' title
can only reflect proven tradition.
Claimants need to prove all aspects of the tradition which they seek to
practise as native title. This burden sits uncomfortably with the history
of Australian Aboriginal affairs - a history of the suppression of
tradition - but native title law does nothing to overcome this. As is now
well known, there are no excuses for people who lost their tradition by
being driven off their land or removed from their families as children.
Paradoxically, however, Australian law may still refuse to 'recognise'
some indigenous land traditions as native title. This is because cultural
categories underlying Australian law are intolerant of different ways of
classifying the world.
Although native title litigation now occurs under the Native Title Act,
the 'recognition' principles are still the ones laid down in Mabo:
principles of 'common', or judge-made, law. (The Act mainly changed the
'extinguishment' principles.) The High Court has hinted that Aboriginal
spirituality alone may connect people to land even when they can't prove
recent presence on it, but spirituality alone is unlikely to generate
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