Nettheim, Garth --- "Native title in other lands" [2009] ALRCRefJl 14; (2009) 93 Australian Law Reform Commission Reform Journal 43

---

Native title in other lands

By Garth Nettheim*

Native title was recognised as an element in Australia’s common law, as derived from English law, only as late as 1992. And yet Britain had a long history of recognising the land rights of Indigenous peoples.

Indeed, the Admiralty’s instructions to Lt. James Cook in 1768 for his first voyage into the Pacific told him what he should do in the event that he found ‘the great south land’:

You are also with the consent of the natives to take possession of convenient situations in the country in the name of the King of Great Britain, or, if you find the country uninhabited take possession for His Majesty by setting up proper marks and inscriptions as first discoverers and possessors. [Emphasis added].

The expedition reached the east coast of Australia and encountered ‘natives’ but (for various reasons) did not obtain their consent before claiming possession of the eastern half of the continent. Settlement proceeded at Port Jackson in 1788, and later elsewhere, on the assumption that such consent was not needed.

Yet earlier British colonial expansion had proceeded on the assumption that Indigenous consent was needed. The negotiation of treaties was an important element in the settlement of British colonies in North America. And in 1840 the establishment of the British presence in New Zealand was based on the Treaty of Waitangi.

Apart from the effect of treaties, after the United States achieved independence the Supreme Court in ‘the Marshall cases’, beginning with Johnson v McIntosh,¹ affirmed that the prior territorial rights of Indigenous peoples continued after settlement, though subject to the ultimate power of the government to extinguish that title and to grant land to settlers. As Richard Bartlett has stated:

‘The common law has developed a uniform jurisprudence upon native title . . . It was the only possible accommodation of the rights of settlers and aboriginal people. It was what pragmatism demanded.’²

Bartlett went on to explain that native title was repeatedly affirmed by decisions of the US Supreme Court and formed the basis of law and policy in that country. Canada gave a ‘similar pre-eminence’ to the concept as recognised in cases such as Calder v Attorney-General for British Columbia.³ In New Zealand, native title was recognised in R v Symonds. ⁴

Such precedents were drawn on in the Mabo litigation in Australia. The effect of the decision of the High Court of Australia in Mabo v Queensland (No 2) was to bring the common law in Australia into line with the developments elsewhere.⁵

But in the US, Canada and New Zealand native title receives some underpinning from treaties and/or from constitutional provisions. Treaties have not been an aspect of the situation in Australia, and there are limited constitutional provisions to reinforce native title.

One important legislative protection has been the force of the Racial Discrimination Act 1975 (Cth) in overriding contrary state legislation. This was a critical factor in the success of the Mabo litigation. But the Commonwealth Parliament itself has the power to displace the operation of the Act, and it has done so on several occasions.

The Commonwealth Constitution, unlike the constitutions of the USA and Canada, contains very few ‘bill of rights’ provisions. One which is significant in relation to native title is the guarantee in section 51 (xxxi) of ‘just terms’ compensation when the Australian Parliament legislates with respect to the acquisition of property.

After the 1992 High Court decision in Mabo (No 2) there were strong political pressures from mining companies, farmers and others for the Australian Parliament to legislate to override the recognition of native title altogether, or at least to limit its impact on non-Indigenous interests. It was true that the law on native title as declared by the High Court allowed for the extinguishment of native title by governments, and the history of two centuries of land grants would have extinguished native title in much of Australia. But the effect of the Racial Discrimination Act may have been to override the grant of interests to others after it commenced operation.

Eventually the Native Title Act 1993 (Cth) (NTA) attempted to achieve a fair balance between Indigenous and non-Indigenous interests. Under the Howard Government, the NTA was subject to major amendments in 1998 to shift that balance more in favour of non-Indigenous interests.

There has also been a body of court decisions, and the effect of some of these, in combination with the legislation, has been to make it more difficult for some native title claims to succeed. Australian courts have tended to feel bound by these developments and less at liberty to follow common law developments elsewhere. There has been increasing emphasis by Indigenous Australians on seeking to advance their goals through negotiated agreements.

But, in the meantime, the Mabo (No 2) decision itself has been relied on by courts in other countries such as Malaysia and Belize in achieving their own recognition of native title.

*Emeritus Professor Garth Nettheim AO teaches Indigenous Legal Issues and Human Rights Law at the Faculty of Law, University of New South Wales.

Endnotes

1 Johnson v McIntosh [1823] USSC 22; (1823) 21 US 240; 8 Wheaton 543; 5L Ed 681.

2 R Bartlett, ‘Mabo: Another Triumph of the Common Law’ [1993] SydLawRw 14; (1993) 15(2) Sydney Law Review 178, 181–182.

3 Calder v Attorney-General for British Columbia (1973) 34 DLR (3d) 145.

4 R v Symonds [1847] NZPCC 387.

5 Mabo v Queensland (No 2) (1992) 175 CLR 1.