SOURCES OF LAW & LEGAL CHANGE: NATIVE TITLE CASE STUDY
w/ Professor Rebecca OUNDATIONS OF LAW
SYDNEY LAW SCHOOL
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Australia’s Indigenous Peoples
Aboriginal Australians Islanders
Source: , former President NTT
Critical Legal Studies: Discussion & Review
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› https://www.menti.com/ qpcb1whdb2
COMPULSORY ACQUISITION OF PROPERTY
THE CASTLE
AUSTRALIAN CONSTITUTION, s 51(xxxi)
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; …
❖ No acquisition of property without just compensation
Secret Instructions to , 30 July 1768
Cook Source: wikipedia
› “You are likewise to observe the Genius, Temper, Disposition and Number of the Natives, if there be any and endeavour by all proper means to cultivate a Friendship and Alliance with them, making them presents of such Trifles as they may Value inviting them to Traffick, and Shewing them every kind of Civility and Regard; taking Care however not to suffer yourself to be surprized by them, but to be always upon your guard against any Accidents.”
› To see all these instructions, click here
Colonial Australia
Governor Phillip’s Instructions, 25 April 1787 (UK)
Source: sydneylivingmuseums.com.au
› “You are to endeavour by every possible means to open an Intercourse with the Savages Natives and to conciliate their affections, enjoining all Our Subjects to live in amity and kindness with them. And if any of Our Subjects shall wantonly destroy them, or give them any unnecessary Interruption in the exercise of their several occupations. It is our Will and Pleasure that you do cause such offenders to be brought to punishment according to the degree of the Offence.”
Sir William Blackstone, Commentaries on the Laws of England (1791)
❖“desart [sic] and uncultivated”
Blackstone, Commentaries (1791) vol 1, 104.
❖“It hath been held that if an uninhabited country be discovered and planted by English subjects all the English law then in being, which are the birthright of every English subject, are immediately there in force’: Blackstone, Commentaries (1791) vol 1, 108.
❖Was Australia settled, ceded, or conquered?
The doctrine of
Laying Down the Law, 9th ed, 2015, 36 [3.3]
Cooper v Stuart (1889) 14 AC 286, 291
› Wales considered “a tract of territory, practically unoccupied, without settled inhabitants or settled land, at the time when it was peacefully annexed to the British dominions”
– at 291
Aboriginal Native Title
Source: https://whitesettlement.wikispaces.com
Australia’s Indigenous Peoples
Aboriginal Australians Islanders
Source: , former President NTT
The pre-existing Australian legal system….
From http://k6.boardofstudies.nsw.edu.au/linkages/IntegratedUnits/aboriginal/invasion_learn01.html on 8 Feb 2012
The Eora Nation
Early Co-existence and Recognition of Indigenous Laws & Customs
› On this see generally the excellent work of Professor Bruce Kercher available here and here.
› Consider:-
– R v Ballard or Barrett [1829] NSWSupC 26; sub nom. R v Dirty Dick (1828) NSW
Sel Cas (Dowling) 2
– R v Boatman or Jackass and Bulleye (1832) NSW Sel Cas (Dowling) 6; [1832] NSWSupC 4 (23 February 1832)
– R v Jackey [1834] NSWSupC 94
– R v Murrell and Bummaree (1836) 1 Legge 72; [1836] NSWSupC 35
– R v Bonjon (1998) 3 Australian Indigenous Law Reporter 410-425; [1841] NSWSupC 92
Milirrpum & Ors v Nabalco & Anor
(1970) 17 FLR 141
Rights Case
Source: National Archives of Australia
Yolngu leaders in Canberra,
1971 National Archives of Australia
Milirrpum & Ors v Nabalco & Anor
(1970) 17 FLR 141
Rights Case
“It is undoubted law that acquisitions of territory by the Crown fall into two classes … there is no doubt that Australia came into the category of a settled or occupied colony. This is established in Wales by an authority which is clear and, as far as this Court is concerned, binding: Cooper v Stuart…”
“Whether or not the Australian Aboriginals [sic] living in any part of Wales had in 1788 a system of law which was beyond the powers of the settlers at that time to perceive or comprehend, it is beyond the power of this Court to decide otherwise than that Wales came into the category of a settled or occupied colony.”
Milirrpum & Ors v Nabalco & Anor
(1970) 17 FLR 141
Rights Case
❖ ‘[Evidence] shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called a “government of laws and not men”, it is that shown in the evidence before me.’
Increased Sensitivity & the Myth of
Walden v Hensler [1987] HCA 54
and the Wik and Wik Way People
From http://www.nntt.gov.au on 9 Feb 2012
Mabo (No. 2) v Qld
(1992) 175 CLR 1
The Mabo Case
❖ ‘[I]t is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.
❖ The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country. …
❖ Whatever the justification advanced in earlier days for refusing to recognize 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. The expectations of the international community accord in this respect with the contemporary values of the Australian people’.
▪ per at [41]-[42]
Mabo (No. 2) v Qld
(1992) 175 CLR 1
Definition
❖‘Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’.
▪ per at [64]
❖Cf Native Title Act 1993 (Cth), s 223, note also the Preamble and Objects (s 3)
Mabo (No. 2) v Qld
(1992) 175 CLR 1
On the nature of Native Title generally
❖ ‘[U]nless there are pre-existing laws of a territory over which the Crown acquires sovereignty which provide for the alienation of interests in land to strangers, the rights and interests which constitute a native title can be possessed only by the indigenous inhabitants and their descendants. Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law. Its alienability is dependent on the laws from which it is derived. If alienation of a right or interest in land is a mere matter of the custom observed by the indigenous inhabitants, not provided for by law enforced by a sovereign power, there is no machinery which can enforce the rights of the alienee’.
▪ per at [65]
Mabo (No. 2)
(1992) 175 CLR 1
On the nature of Native Title generally
❖‘[N]ative title, being recognized by the common law (though not as a common law tenure), may be protected by such legal or equitable
remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual. The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants, provided those laws and customs are not so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld: v. Oshodi(130) (1934) AC 99, at p 105. Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will
change too.’
▪ per at [68]
Mabo (No. 2)
(1992) 175 CLR 1
On the nature of Native Title generally
❖‘[W]here an indigenous people (including a clan or group), as a community, are in possession or are entitled to possession of land under a proprietary native title, their possession may be protected or their entitlement to possession may be enforced by a representative action brought on behalf of the people or by a sub- group or individual who sues to protect or enforce rights or interests which are dependent on the communal native title. Those rights and interests are, so to speak, carved out of the communal native title’.
▪ per at [68]
Mabo (No. 2)
(1992) 175 CLR 1
The Mabo Case
❖ ‘The common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the in accordance with their laws or customs is preserved, as native title, under the law of Queensland….
❖ Native title, where it exists, is a form of permissive occupancy at the will of the Crown’.
▪ J and Mc at [2] (concurring with and (sole dissentient in case) on the last point).
Mabo (No. 2)
(1992) 175 CLR 1
❖ ‘The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices. In these circumstances, the Court is under a clear duty to re- examine the two propositions. For the reasons which we have explained, that re-examination compels their rejection. The lands of this continent were not terra nullius or “practically unoccupied” in 1788. The Crown’s property in the lands of the Colony of Wales was, under the common law which became applicable upon the establishment of the Colony in 1788, reduced or qualified by the burden of the common law native title of the Aboriginal tribes and clans to the particular areas of land on which they lived or which they used for traditional purposes”
▪ Deane and Gaudron JJ at [58] (emphasis added)
Mabo (No. 2)
(1992) 175 CLR 1
ON THE EMOTIVE LANGUAGE…
❖ ‘[W]e are conscious of the fact that, in those parts of this judgment which deal with the dispossession of Australian Aborigines, we have used language and expressed conclusions which some may think to be unusually emotive for a judgment in this Court. We have not done that in order to trespass into the area of assessment or attribution of moral guilt. As we have endeavoured to make clear, the reason which has led us to describe, and express conclusions about, the dispossession of Australian Aborigines in unrestrained language is that the full facts of that dispossession are of critical importance to the assessment of the legitimacy of the propositions that the continent was unoccupied for legal purposes and that the unqualified legal and beneficial ownership of all the lands of the continent vested in the Crown.”
▪ Deane and Gaudron JJ at [78]
Interactive Exercises: Review
Mabo & Post Mabo
❖ https://www.menti.com/1pj1q45w1m
Political & Legal Reactions to Mabo
❖Some hysteria: initial reactions: cf “I am not here to soak up all your prejudices”, “I think you’re talking prejudice”…
▪Former PM Paul Keating, 1992, on ’ Radio Program
❖Former PM Paul Keating’s Redfern Statement ❖Native Title Act 1993 (Cth), s 3 (Objects)
Some criticism …
❖ [My book ] Raw Law looks critically at who is on the native title gravy train, who is eating and who remains starved. Starved literally for food but also starved for the health of country and the ability to sustain our worlds for future generations. The academy has been well fed: many academic careers have been made from the native title gravy train, and many law firms have grown fat from native title work. The Australian government saved face in the High Court’s Mabo decision, which effectively diverted international condemnation from a racist colonial foundation, terra nullius. […] Terra nullius has life post-Mabo and post-Western Sahara. There was no glitch or pause; the only change was the assimilation of some ‘successful native title’ applicants into the Australian law of property. Our capacity to care for country remains a struggle. Native title does little to alter that struggle; it only enables some of us to participate in the un- lawful activity of wheeling and dealing and selling the land, or to assimilate into the colonial game of recognition
▪ , ‘Aboriginal laws and colonial foundation’, Review 1, 3-4 (citations omitted)
Wik Peoples v Queensland
(1996) 187 CLR 1
Wik Case – Majority
❖‘Pastoral leases give rise to statutory interests in land which are sui generis. Being creatures of Australian statutes, their character and incidents must be derived from the statute. Neither of the Acts in question here expressly extinguishes native title. To do so very clear statutory language would, by conventional theory, be required. When the Acts are examined, clear language of extinguishment is simply missing. On the contrary, there are several indications which support the contention of the Wik and the Thayorre that the interest in land which was granted to the pastoralist was a limited one: for “grazing purposes only”, as the leases stated. Such an interest could, in law, be exercised and enjoyed to the full without necessarily extinguishing native title interests. The extent to which the two interests could operate together is a matter for further evidence and legal analysis. Only if there is inconsistency between the legal interests of the lessee (as defined by the instrument of lease and the legislation under which it was granted) and the native title (as established by evidence), will such native title, to the extent of the inconsistency, be extinguished’.
▪ Per Kirby J
Wik Peoples v Queensland
(1996) 187 CLR 1
Wik Case – Minority
❖ ’As I held in Mabo [No 2], native title “has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory”[74]. Those rights, although ascertained by reference to traditional laws and customs are enforceable as common law rights. That is what is meant when it is said that native title is recognised by the common law[75]. Unless traditional law or custom so requires, native title does not require any conduct on the part of any person to complete it, nor does it depend for its existence on any legislative, executive or judicial declaration. The strength of native title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it[76]. Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.
❖ A law or executive act which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect “unless there be a clear and plain intention to do so”[77]. Such an intention is not to be collected by enquiry into the state of mind of the legislators or of the executive officer but from the words of the relevant law or from the nature of the executive act and of the power supporting it. The test of intention to extinguish is an objective test.
❖ A law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title[78]
▪ J (in dissent). (citations omitted)
Interactive Exercises: Review
Native title & post Mabo
❖ https://www.menti.com/phw69dn98r
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