Brennan, Sean --- "Aboriginal land still vulnerable" [2009] ALRCRefJl 8; (2009) 93 Australian Law Reform Commission Reform Journal 26

---

Aboriginal land still vulnerable

By Sean Brennan*

The Mabo decision by the High Court in 1992 was historic because the common law of Australia recognised the pre-existing property rights of Aboriginal and Torres Strait Islander people. But it came so late—more than 200 years after the process of British colonisation commenced—that compromises were made.

Native title is particularly vulnerable to being wiped out or diminished because the law denies it the full array of protections enjoyed by other property rights. This has become clearer in the years since 1992, mainly through later High Court decisions. Our judges faced choices in these early test cases about how much protection this new branch of Australian law would offer Indigenous property rights. Often the choices they made reinforced the vulnerability of native title, rather than its parity with the rights of non-Indigenous owners.¹

The most recent High Court decision on native title continues this pattern. On its face, it suggests that all types of property could be taken by government from one owner, simply to put it in the hands of another who seeks to make private profit from it (a ‘private-to-private transfer’). But in reality it is likely that such compulsory acquisition powers will be exercised more often over precisely the land most likely to contain the strongest native title rights. Indeed, the Northern Territory experience discussed in the High Court case Griffiths v Minister for Lands, Planning Environment ² bears out this theory. It prompts the question whether the Commonwealth Parliament should step in to strengthen the position of native title holders in the face of ‘private-to-private transfers’.

Compulsory acquisition

Everyone’s land is subject to the possibility of compulsory acquisition by the government. The power to resume land is seen as inherent to sovereignty, that is, the legal and political authority to govern a society. However, because the Anglo-Australian legal system has always treated property rights seriously, there are built-in protections for owners facing compulsory acquisition. Some are found in the rules of the common law and the way statutes are interpreted by judges. Others are spelt out in statutes and others are even embedded in the Constitution itself. These protections deal with issues like notice, negotiations, the assessment of land value and the payment of compensation.

At the outset I said that Australian judges had defined native title to be more vulnerable than other forms of property ownership. A key weakness is that, when faced by native title, the government did not need to resort to prior compulsory acquisition and bother with these in-built protections for property owners. It could simply grant land to others over the top of native title. That kind of one-step inconsistent grant is simply not possible where someone owns land under mainstream property law. That single proposition of native title law—the legal doctrine of extinguishment by inconsistent grant—explains how so many Indigenous groups came to be lawfully dispossessed, in the eyes of the courts.

When the political campaigns of the 1960s and 1970s for land rights began to pay off and Parliaments around Australia started restoring land to Aboriginal and Torres Strait Islander people, many of those new laws included added protections against any further dispossession. Land rights statutes often contained a provision that said that the government cannot simply exercise its powers of compulsory acquisition over newly-restored Indigenous land and once more eat into the Indigenous estate. Resumptions of land could only occur by a separate Act of Parliament— that is, with transparency and the strong possibility of political opposition.

In native title law too, Parliament provided a level of protection in the face of compulsory acquisition. The federal Native Title Act 1993 (Cth) (NTA) built on the principles of the Racial Discrimination Act 1975 (Cth). Along with mining projects, compulsory acquisition was seen as threatening the greatest harm to this newly recognised property right known as native title. So a special process was inserted in the NTA, built around direct negotiations and, if agreement proved elusive, arbitration (a process often referred to as the ‘right to negotiate’).

Together, the Racial Discrimination Act, the right to negotiate and the requirement for a separate acquisition statute in land rights legislation turned the tide on dispossession. Native title was still more vulnerable than other forms of ownership, but there were significant legal barriers in the way of a government seeking to strip Indigenous property rights in order to put to land in the hands of a private profit-making entity.

Native title rights reduced after 1998

Some of those statutory protections were reduced when the Commonwealth Government amended the NTA in 1998 and certain states and territories followed suit. The Northern Territory Government created a very wide acquisition power, without spelling out that the power included private-to-private transfers.

According to the Northern Land Council, the Territory Government issued 82 compulsory acquisition notices after the power was widened in the late 1990s and on every occasion, the land was claimed or claimable by Aboriginal people.³

In the Griffiths case, Aboriginal people from the small outback town of Timber Creek challenged this use of compulsory acquisition powers to seize native title land and subsequently grant it to a private business. They argued that common lawprinciples prevented a ‘privateto-private transfer’, unless the acquisition law was totally explicit. Without those clear words, an acquisition could only be for a public purpose such as building a school, road or hospital, not for private profit.

The legal challenge failed because the High Court, by five judges to two, decided that there was no legal problem with an acquisition of this kind. This surprised many people, because hostility to using the government’s coercive powers of compulsory acquisition to enrich private interests runs deep in the common law.⁴

The risk is that, of all the land that might be resumed for private enrichment rather than public purpose, prime native title land (that is unalienated or so-called ‘vacant’ Crown land) is probably the most susceptible. That is how it turned out in the Northern Territory after 1998. To avoid further potential for racial discrimination in the way Australian property law operates, one solution is for the Commonwealth Parliament to amend the NTA to strengthen protections for native title land against private-to-private transfer.

*Sean Brennan is the Director of the Indigenous Legal Issues Project, Gilbert + Tobin Centre for Public Law and Senior Lecturer, UNSW Law School.

Endnotes

1 S Brennan, ‘Native Title in the High Court of Australia a decade after Mabo’ (2003) 14 Public

Law Review 209, 217-218.

2 Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20.

3 ABC Radio National, ‘Land Appropriation in the NT’, The Law Report (20 May 2008),

<www.abc.net.au/ rn/lawreport/stories/2008/2247140.htm#transcript> at 5 November 2008.

4 K Gray, ‘There’s No Place Like Home!’ [2007] JSPL 4; (2007) 11 Journal of South Pacific Law 73; M Taggart,

‘Expropriation, Public Purpose and the Constitution’ in C Forsyth and I Hare (eds), The

Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William

Wade QC (1998), 91–112.