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The case of Ward[1] is important because it considers the question of partial extinguishment of native title, a question which has not yet been determined by the High Court. There are two separate modes of analysis used by the Full Federal Court. The majority, Beaumont and von Doussa JJ, adopts the bundle of rights theory as a prism through which to see native title. The minority judge, North J, suggests that native title must be interpreted by the law in a way which admits the perspective of indigenous people.
My argument in this case note will be twofold. Firstly, I will look at the use of the bundle of rights theory in the law. It will be my contention that the bundle of rights theory does not adequately explain the phenomenon of proprietary rights. However, the theory continues to be used by courts because of a lack of any adequate juristic mechanism with which to analyse property rights and the incidents of ownership. Secondly, I will argue that the bundle of rights theory is a particularly inappropriate mode of analysis in respect of native title interests because of the special nature of native title. The determination of the theory that should be used to analyse native title requires very much a policy decision by the courts. This decision is important, because it ultimately affects the substantive rights of the parties.
The case involved a native title claim brought by the Miriuwung and Gajerrong peoples[2] under the Native Title Act 1993 (Cth), which covered land in the East Kimberley District in Western Australia and adjoining land in the Northern Territory. The area that was claimed covered 7900 square kilometres of land and water, including parts of the town of Kununurra, Lake Kununurra and Lake Argyle. Within the claim were vacant areas of Crown land, reserved Crown land, Crown land in a pastoral lease granted to the Aboriginal Lands Trust, and several small areas of freehold land. Parts of the Ord River irrigation area and the Argyle Diamond Mine were also included in the claim area.
On 24 November 1998, Lee J at first instance determined in favour of the Miriuwung and Gajerrong peoples.[3] He found that the Miriuwung and Gajerrong peoples could establish the requisite connection with the land. Furthermore, he found that in many instances native title had not been extinguished. Where a right was only partially inconsistent with the exercise of native title rights, he found that native title had a capacity to revive once the inconsistency had ceased.[4] In order to determine the question of extinguishment, Lee J used the test of ‘adverse dominion’ as stated by Lambert JA in Delgamuukw v British Columbia.[5]
Consequently, there were appeals and a cross-appeal to the Full Federal Court,[6] composed of Beaumont, von Doussa and North JJ. Their decision is the subject of this case note. The Court agreed that native title can be proven. The crux of the decision is whether and to what extent native title had been extinguished.
Beaumont and von Doussa JJ comprise the majority in Ward. At the beginning of their judgment, they emphasise the peculiar nature of native title: it is a sui generis interest which is not rooted in the common law.[7] They then rely on comments in Mabo v Queensland [No 2],[8] Western Australia v Commonwealth[9] and Fejo v Northern Territory[10] to conclude that native title is especially fragile.[11] This sets the tenor of the majority judgment: native title is a right different from and lesser than any other common law right, and it is a fragile divisible interest which can be extinguished piece by piece.
The majority criticises the use by Lee J of the Canadian adverse dominion test as stated by Lambert JA in Delgamuukw v British Columbia.[12] The adverse dominion test has three conditions which must all be satisfied in order to justify the extinguishment of native title. First, there must be a clear and plain expression of intention by the legislature to extinguish native title. Second, there must be an act authorised by the legislature which brings about permanent adverse dominion. Third, there must be actual use made of the land which is permanently inconsistent with the continuance of native title and does not merely suspend it.
The majority criticises the use of this test in three ways which correspond to each of the elements of the test. First, they note that in Fejo[13] it was stated that it is not the intention of the legislature in making a grant per se which is relevant, but the effect of that grant on native title.[14] Second, they argue that Australian law has no requirement of permanent inconsistency, and use Brennan J’s judgment from Mabo[15] to support this conclusion.[16] Third, they argue that the High Court in Fejo and The Wik Peoples v Queensland; The Thayorre People v Queensland[17] did not require actual inconsistent use of the land.[18] When the case comes before the High Court later this year,[19] it may well be that the High Court will agree with the majority that Lee J’s use of Canadian law in an Australian context is inappropriate,[20] as they have already indicated this in Fejo.[21]
Instead of using the adverse dominion test, the majority propounds the ‘inconsistency of incidents’ test as used in Wik[22] and Commonwealth v Yarmirr[23] and as approved in Fejo.[24] They describe it in the following terms:
The test requires a comparison between the legal nature and incidents of the existing native title and of the statutory grant. The question is whether the respective incidents are such that the native title rights cannot be exercised without abrogating rights created by the statutory grant. If they cannot, then by necessary implication the native title rights are extinguished. The question is not whether the estate or interest granted had been exercised, in fact, in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised.[25]
However, the majority notes that neither the High Court nor the Full Federal Court has yet authoritatively determined the question of partial extinguishment of native title.[26]
Lee J at first instance again used Canadian law as a guide when deciding the question of partial extinguishment. He relied upon the judgment of Lamer CJ in Delgamuukw v British Columbia[27] to conclude that native title was not a mere bundle of rights: it was a fundamental connection with the land, upon which other rights were dependent.[28] Thus, under Lee J’s analysis, native title is analogous and equal to any other form of common law tenure,[29] and there can be no partial extinguishment of native title where the underlying connection with the land survives. The majority in the appeal expressly rejects this concept.[30]
Beaumont and von Doussa JJ look at the question of partial extinguishment through the framework of a bundle of rights analysis, as they consider that this accords with the judgment of Brennan J in Mabo and the postscript to the judgment of Toohey J in Wik.[31] They say that
[t]hese statements of principle would suggest that if particular rights and interests of indigenous people in or in relation to land are inconsistent with rights conferred under a statutory grant, the inconsistent rights and interests are extinguished, and the bundle of rights which is conveniently described as ‘native title’ is reduced accordingly.[32]
The majority judgment stresses the importance in the common law of looking at the ‘empirical facts’[33] in order to determine native title ownership. They concede that there must be ‘some primal perception of the propriety of one’s nexus with land which asserts that the land is “proper” to one; that one has some significant self-constituting, self-realising, self-identifying connection with the land’.[34] However, Beaumont and von Doussa JJ[35] use an article by Kevin and Susan Gray[36] to justify the conclusion that the common law does not protect this sort of right, but rather protects only those rights that can be documented and proven. Consequently, they conclude that the common law cannot protect the spiritual relationship that indigenous people have with the land: it only protects physical enjoyment of rights that are empirically proven.[37] However, the majority acknowledges that, despite the fact that the common law does not recognise a spiritual relationship, such a relationship may still subsist.[38]
Thus, according to the majority, native title is a bundle of rights which does not include spiritual rights, and those ‘sticks’[39] that make up the native title bundle of rights can be removed one by one. The policy behind the majority’s use of the bundle of rights analysis is presumably a desire to compromise between indigenous and settler interests in a way in which the two can coexist. The majority provides for the partial survival as well as the partial extinguishment of native title rights and, thus, their decision is commendable in that respect. However, there are practical consequences of their analysis.
The proof of the pudding is the application by the majority judges of their principles of partial extinguishment to the facts of the case. The majority finds that pastoral leases only partially extinguish native title where there is a reservation in favour of Aboriginal people.[40] In Western Australia reservations in pastoral leases only cover ‘unimproved’ and ‘unenclosed’ land.[41] Where the land does not fall under this category, native title may be totally extinguished.[42] The majority also notes that mining leases in Western Australia totally extinguish native title,[43] as do the Ord River Irrigation Project[44] and the Argyle Diamond Project,[45] because they are inconsistent with the exercise of native title rights. Similarly, the grant of mining leases also extinguish native title rights in minerals and petroleum.[46] However, the majority holds that native title subsists in the Keep River National Park,[47] because reservations of land for a public purpose do not prima facie extinguish native title, though they may do so.
North J strongly dissents from the majority on the issue of partial extinguishment. He reminds us that extinguishment of native title means extinguishment forever in the eyes of the common law.[48] However, he says that it does not mean that native title has been extinguished in the eyes of Aboriginal people[49] and, thus, it is important to exercise caution in developing a principle of extinguishment. North J contends that, logically, native title should revive, even after the occurrence of acts which are inconsistent with native title.[50] The advantages of this, he says, are twofold. Firstly, there is a logical conformity between the aim of the law or act and its legal consequences. Secondly, inconsistent rights prevail, but have an impact on native title which is proportionate to their strength.[51] This contention is supported by the fact that Mabo endorses and indeed requires an approach that accords full respect to native title rights before the law.[52] North J stresses that there must be a clear and plain intention to extinguish native title,[53] and cites Mabo,[54] the Native Title Act Case,[55] Wik[56] and Fejo[57] to support this conclusion.
As a result of this chain of reasoning, North J argues that there must be an absolute inconsistency for native title to be extinguished.[58] He notes that comments in Mabo with regard to inconsistency are obiter only, as the main thrust of that case was to establish the recognition of native title by the common law.[59] He reads the High Court decisions in Wik, Fejo and Yanner v Eaton[60] as requiring total inconsistency. Wik does not allow coexistence of rights. Nevertheless, like the majority, North J notes that the question of partial inconsistency is not a question which has been authoritatively determined.[61] Wik was inconclusive on the issue: Brennan CJ rejected any reversionary right,[62] but the majority did not decide the question. However, this issue was considered by the Federal Court in the case of Mineralogy Pty Ltd v National Native Title Tribunal.[63] In that case Carr J found that native title is only temporarily suspended by the grant of inconsistent rights. Thus, according to North J, legislation that regulates native title rights and interests should not be read as extinguishing it.[64] It is North J’s opinion that, where there is an exclusive possession lease, native title should also revive after the expiry of the lease.[65] He argues that this creates more certainty than the approach of the majority,[66] which finds that short finite leases may not extinguish native title, though long leases would.[67]
North J rejects the contention of the majority that native title is best seen in the context of a bundle of rights. He states that ‘[t]he proper characterisation of native title ... depends on Aboriginal law and custom. The matter must be viewed from the Aboriginal perspective.’[68]
According to North J, from an Aboriginal perspective the relationship between Aboriginal people and the land cannot be seen as a bundle of rights. Rather, Aboriginal people have a fundamental connection with the land itself. Thus, North J concludes that clear extinguishment can only be found where there is a clear and plain intention to abolish this connection.[69] He cites Brennan J in Mabo[70] and the majority in Yanner[71] in support of this conclusion. He also criticises the use by Beaumont and von Doussa JJ of Kevin and Susan Gray’s article, ‘The Idea of Property in Land’.[72] He suggests that the majority misunderstands and misuses the concepts of ‘a perception of socially constituted fact’ and ‘various assortments of artificially jural right’.[73] The article states that these two concepts are different and contrasting. A passage from Yanner that is cited by the majority stresses that native title must not merely be understood as an assortment of artificially jural rights.[74] North J agrees with Lee J that comments in Mabo by Brennan J about extinguishment ‘to the extent of the inconsistency’[75] must be understood as referring to the way in which native title may be extinguished by freehold grant, but not by lesser interests.[76] Under this analysis, Brennan J’s comments do not mean that a lesser interest extinguishes only part of the bundle of rights making up native title.
North J also considers the manner in which the legal doctrine of extinguishment developed in United States native title cases such as Johnson v McIntosh.[77] He cautions against the adoption of an analogous concept of extinguishment, as the doctrine in the US was developed at a much earlier time, when there was a perceived need to subdue an aggressive indigenous population.[78] He notes, too, that the doctrine of tenure has changed quite radically from the time of its institution.[79] North J suggests that the law should free itself from ‘medieval chains’.[80] Consequently, the doctrines of tenure and estates can accommodate the suspension of native title rights.[81] He argues strongly that Lee J’s original formulation of the law was correct.[82]
Because of this approach to partial extinguishment, North J necessarily finds that a broader range of interests has escaped extinguishment in contrast with the majority findings. He agrees with Lee J that the interests in minerals and petroleum did not extinguish native title.[83] Indigenous peoples’ right to the land included the right to exploit resources of the land, and it was now appropriate to extend that right to mineral and petroleum rights.[84] North J also argues that Yanner leads to the conclusion that the Crown’s legislative declaration of property in minerals and petroleum did not extinguish native title.[85]
North J agrees with Lee J that there is a right flowing from the connection with the land itself which allows indigenous people to maintain, protect and prevent the misuse of cultural knowledge.[86]
North J criticises the bundle of rights theory in the context of native title. I will argue that the theory is not merely inappropriate in this context, but is also an inadequate theory to explain the nature of property. I will also argue that theories alternative to the bundle of rights theory are equally inadequate. Courts admit the problems inherent in the theory. However, they are forced to use the theory for lack of any other analytical tool with which they can understand proprietary rights.
The bundle of rights theory conceives of proprietary rights as a bundle held by the property owner against the rest of the world.[87] This bundle also contains duties and liabilities.[88] The bundle of rights theory is the dominant paradigm applied by Western legal philosophers,[89] combining the theories of Hohfeld[90] and Honoré.[91] Hohfeld developed the theory that property rights are rights between people, rather than rights in relation to things.[92] The difference between personal and proprietary rights is that proprietary rights can be enforced as against the rest of the world, whereas personal rights can only be enforced against those who are parties to the agreement.[93] Honoré gives a list of rights and the ensuing duties and liabilities that proprietary rights ordinarily entail.[94] He extends Hohfeld’s theory, applying it to things themselves.[95]
Penner divides bundle of rights theorists into two groups. Firstly, there are the proponents of the ‘substantive’ bundle of rights view. These theorists merely fractionate the right to property into many different types of relationships with a thing.[96] Penner identifies a variant of this which he calls the ‘disaggregative’ version of the bundle of rights theory.[97] Under this theory the rights to property are very broad and as infinite as the number of uses to which property can be put: ‘This view emphasizes in the strongest fashion that the very nature of property is that of an infinitely divisible composite, which can be disintegrated into or built up from less extensive rights.’[98]
Secondly, there are what Penner calls ‘conceptual’ bundle of rights theorists,[99] of which Honoré is the epitome. These theorists have identified a number of common features of ownership, which they say remain constant over time and culture.[100] According to this view, the bundle of rights consists of the standard incidents of ownership. However, it is not necessary for all these incidents to be found in each instance of property.[101]
Despite the fact that the bundle of rights theory is the pre-eminent Western jurisprudential theory of property, it has been heavily criticised by a number of different theorists. Generally, these criticisms centre on the fact that the bundle of rights theory does not adequately explain the right to property.
As stated by Sackville J in Wily v St George Partnership Banking Ltd, one of the problems attending analysis of proprietary rights is a ‘chicken and egg problem’ of circularity of definition.[102] Property can be identified by those rights which attend it. But, by looking at what rights attend a thing, the rights to it can be categorised as proprietary. Thus, as an analytical tool, the bundle of rights theory possesses an inherent problem.
Penner states that
[t]he slogan, ‘property is a bundle of rights,’ is a verbal representation of a picture in which property is a complex aggregate of jural relations. But this picture is founded on the mistaken impression that the elaboration of how property protects the use of things, and its interrelation with other rights, shows that property is a natural composite which can be carved ‘at the joints’ into free-standing parts. ... [T]his picture is out of focus. Property is indeed complicated, but it is complicated because of the natural ability of people to use different kinds of things in different ways, and because of its situation in a normative system wherein different rights and duties and powers interrelate and inform each other.[103]
As I will later argue, this comment is particularly apposite when viewed in the context of native title. Penner criticises the bundle of rights theory on a number of bases. He argues, firstly, that the substantive bundle of rights theory ‘multiplies elements of property to produce an explanation which is actually inferior to one which regards it as a unified legal relation.’[104] Consequently, it merely describes property rights in a way that is ‘innocuous’[105] and could equally well be applied to any other area of law such as contract or tort.[106] Secondly, Penner criticises the conceptual bundle of rights view, stating that it ultimately fails as a definition because it is intertwined with the classical view of semantics.[107] The classical view of semantics states that, before something can be defined, there is a necessary and sufficient number of conditions which must be satisfied.[108] The conceptual bundle of rights theory, however, operates on the basis that not all of the incidents of property must be fulfilled before the term ‘property’ may be applied.[109] Therefore, Penner argues that the definition is ‘useless’.[110]
Penner’s alternative definition of property employs the notion of ‘exclusive use’.[111] His definition is as follows:
The right to property is the right to determine the use or disposition of an alienable thing in so far as that can be achieved or aided by others excluding themselves from it, and includes the right to abandon it, to share it, to license it to others (either exclusively or not), and to give it to others in its entirety.[112]
He considers that the excludability of property is like a gate rather than a wall: we can choose whom we allow to use our property.[113] He says that there is also a correlative duty upon the rest of the world to exclude themselves from the property of others.[114] Penner argues that the right of exclusive use includes gratuitous transfers, but does not include contractual transfers.[115] Rather than the classical view of concepts, Penner adopts the ‘family resemblance’ explanation of meaning: that is, that a concept can be applied according to the right set of criteria in the right circumstances.[116]
Penner’s analysis seems to me to be a tweaking and reshaping of the bundle of rights analysis, as can be seen from the way in which Penner contrasts and fits his analysis in with Honoré’s rights. I do not find the family resemblance explanation of meaning particularly helpful, as it seems to return to a position where definitions are infinitely malleable. From the perspective of native title law, the exclusive use theory would tend to suggest that coexistence of rights would not be possible. This is because under his theory Penner presupposes that we choose whom we allow to share our property. In the situation of native title, however, indigenous people have not chosen to share their property with the incoming settlers. In my opinion, Penner’s theory does not cover the situation of colonialism, where land is taken from indigenous people.
Grey argues that the traditional concept of property has been ‘disintegrated’ by the bundle of rights theory.[117] His thesis is that both traditional Marxism and traditional capitalism were rooted in an 18th century understanding of property as ownership of material things; Marxism sought to undermine ownership of material things, and capitalism sought to uphold it. However, Grey contends that now the basis upon which those theories are built, that is, property in material things, has been undermined and disintegrated. Consequently, he argues that property ‘ceases to be an important category in legal and political theory’.[118] Although I would not go as far as Grey in this respect, I would agree that the concept of property can be deconstructed in a way which would not have been possible in the 19th century.
Grey does not give an alternative definition of property. He merely sees the fractionation and disintegration of property rights as an incident of the development of a pre-industrial economy of private proprietors into an industrial economy.[119]
Like Grey, Hoffmaster states that the bundle of rights theory leads to a
malleable definition of property which has no clear guidelines.[120] Thus, in Moore v Regents of the University of California[121] the Supreme Court of California was unable to apply the definition of property to the plaintiff’s spleen, because there is no such clear concept.[122] Hoffmaster sees property as a ‘cluster concept’, with a central definition of property around which new developments cluster.[123] Again, Hoffmaster merely deconstructs property — he does not give an alternative definition.
Gray’s critique is cited in the discussion of the bundle of rights theory in Yanner.[124] Gray argues that property is an ‘illusion’ and that the bundle of rights theory helps to conceal the truth: ‘[L]egal theorists have long sought to sidestep the unattainable quality inherent in the notion of private property by conceptualising property not as a thing but rather as a “bundle of rights”.’[125] Gray argues that talk of property is ‘merely talk without substance’[126] and that upon close inspection the concept simply vanishes into thin air.
Gray’s alternative theory of property centres on the concept of ‘excludability’,[127] which he draws from the majority in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor.[128] He finds three bases upon which resources may be non-excludable: physical, legal and moral.[129] Physical non-excludability occurs where it is not practicable to exclude strangers from accessing the benefits of a particular resource,[130] for example, the light of the sun. Legal non-excludability occurs where an owner could legally prevent a stranger from accessing a resource, for example, by exercising rights under an intellectual property regime, but fails to do so.[131] Finally, moral non-excludability occurs where there are resources, such as the common human resource of language, which are so important or intrinsic to human coexistence that they should be shared.[132] I do not, however, find this theory any less illusory than the concept of the bundle of rights. In deciding what is physically, morally or legally non-excludable, one has to make a policy decision as to what resources should be available to all, particularly in the case of moral and legal non-excludability. Thus it is just as arbitrary and policy-driven as the bundle of rights theory.
Notwithstanding that these critiques of the bundle of rights theory are themselves subject to criticism, it is my argument that they highlight the deficiencies of the bundle of rights theory. The theory is circular and inadequate and, thus, the majority in Ward should not be using it. The question then is whether there are any other theories which are useful.
The High Court recognised in Yanner that the bundle of rights theory is an inadequate tool with which to analyse property. However, the Court also recognised the lack of any workable alternative offered by theorists:
The word ‘property’ is often used to refer to something that belongs to another. ... ‘[P]roperty’ does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of ‘property’ may be elusive. Usually it is treated as a ‘bundle of rights’. But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said, that ‘the ultimate fact about property is that it does not really exist: it is mere illusion’.[133]
Saying that property is mere illusion is not particularly helpful. In fact, when it is people’s livelihood, culture and spirituality which are bound up in a legal determination, it could be described as insulting.
There needs to be an alternative way of looking at property. In this case note I am focusing on the problem of property and native title. I will argue that, when looking at native title, property must be viewed from a broad indigenous perspective, rather than from the perspective of the bundle of rights theory which compartmentalises property into artificial packages.
The bundle of rights theory is particularly inappropriate in a native title context. North J has already highlighted many of the reasons for this in his powerful dissent. There are two strands to my argument.
Firstly, the bundle of rights theory is inappropriate as it describes the incidents of property from only one cultural perspective. As Brennan J said so appropriately in R v Toohey; Ex parte Meneling Station Pty Ltd, ‘Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights’.[134] The bundle of rights view of property is an attenuated version of the doctrine established in Milirrpum v Nabalco Pty Ltd[135] — whilst native title is now recognised by the common law, the bundle of rights analysis demands that incidents of indigenous ownership display characteristics similar to Western property rights if native title is not to be extinguished.
Secondly, from a practical point of view, the bundle of rights theory allows native title to be divided up and extinguished accordingly. As Penner states, the theory presupposes ‘that property is a natural composite which can be carved “at the joints” into free-standing parts’.[136] The implication of this for native title is that the ‘free-standing parts’ can then be extinguished by any inconsistent act. This means that native title is a very weak right indeed in the eyes of the Australian legal system.
As North J notes, the bundle of rights theory does not square at all well with indigenous perspectives on their relationship with the land.[137] Irene Watson, a Nunga person, states that
[t]here has never been a real understanding by non-indigenous peoples of the Aboriginal laws and their intricate and holistic relationship with all aspects of the environment and humanity. The law, land and peoples are one integrated whole.[138]
She sees her relationship with the land as an indivisible whole. Anthropologists have also recognised that an Aboriginal understanding of ownership of the land may be fundamentally different from an Anglo-Australian understanding.[139] The bundle of rights theory assumes that proprietary rights can be divided up. Aboriginal people, however, do not necessarily make divisions between property, law and culture, let alone divide up proprietary rights in the way that the bundle of rights theory dictates. North J states that the intention of the doctrine of native title is to allow recognition of indigenous relationships with the land.[140] It may be, as Watson states, that as a non-indigenous person I can never really understand her relationship with the land. Nevertheless, the law should choose a method of regarding indigenous interests which in some way accommodates an indigenous perspective. The bundle of rights theory is wholly inconsistent with the perspective of indigenous Australians.
Also part of the problem is that indigenous ownership has no notion of exclusivity that is analogous to Anglo-Australian property rights. Palmer refers to the ownership that Harold Madge, a Yalata man, has over his land:
Neither Harold, nor any of the men with whom I talked, considered that it was necessary to ask permission to visit or to exploit a rockhole that was not within their own ngura. Harold is no more the owner of the sites that comprise his ngura than any other Pitjantjara who has the right to ultilize their economic resources. The members of a local descent group, however defined, cannot therefore logically be the land owners. Yet Harold obviously claims he owns something when he talks of his ngura. It is now a question of identifying what it is that a countryman owns.[141]
This is why theories of exclusivity and exclusive use are incompatible with a true recognition of native title.
The typical bundle of rights analysis also does not take account of the spiritual relationship with the land which is so pivotal to Aboriginal people. Galarrwuy Yunupingu talks about the land as his ‘back-bone’ and spiritual source.[142] Spirituality is certainly not one of Honoré’s incidents of ownership.
As Watson argues, to fail properly to recognise indigenous ownership in a way which adequately reflects indigenous ownership of the land is to continue the colonisation and oppression of indigenous people.[143] If we are going to make the effort to recognise indigenous interests in the land, we should do so in a way that encourages understanding of different thought processes.
The practical effect of the different analyses of property can be seen from the judgment in Ward itself. The majority approach, using the bundle of rights analysis, allows each ‘stick’ to be removed from the main bundle. Thus, extinguishment of native title is far easier. Native title is already the weakest proprietary right (if, indeed, it can be characterised as proprietary, as there is some doubt on this matter).[144] In Ward the majority judges stress the fragility of native title and find that it can be extinguished by partial inconsistency. As North J points out, this leads to the absurd conclusion that an exclusive possession lease for one day may extinguish hundreds of years of connection with the land.[145]
As indigenous commentators have noted, only a small number of indigenous people will be able to claim native title in any case,[146] but the broadscale extinguishment justified by the bundle of rights theory makes the ability to claim native title in practice even less likely. Native title becomes a dead letter ¾ a grand-sounding promise offered to indigenous people with very little practical benefit. Arguably, the recognition of native title by the common law in Mabo is radical in its sentiment but limited in its practical effect.
Indigenous connection with the land should be recognised in the form suggested by North J and Lee J at first instance, that is, as pendent rights stemming from a connection with the land. This achieves two things. First, it means that native title has a greater equality with common law forms of tenure and is no longer an inherently fragile right. This is because it is regarded not merely as a divisible bundle of interests, but as a fundamental right to the land from which interests flow. Second, it means that native title more accurately reflects indigenous ideas of the land.
It is conceded that an holistic view of native title is not without flaws. The use of the bundle of rights theory is an attempt to resolve the conflict between indigenous and settler rights such that coexistence is possible. Nevertheless, North J’s judgment shows that coexistence can still work where native title is regarded as an holistic concept. In his analysis, if native title rights are not permanently extinguished, but lie dormant where there is temporary inconsistency, the coexistence of settler rights with a stronger and less fragile concept of native title may be possible.
The bundle of rights theory does not work logically as an analytical tool, particularly in the context of native title. Consequently, it should not be used by courts in cases such as Ward. The question then to be resolved is the mechanism that courts should use to find which rights flow from the ownership of property. This case note has argued that other theories of proprietary interests are also inadequate, especially in a native title context.
It should be recognised that, if the definition of property is so malleable at the edges, then the question of what incidents flow from it is really a question of policy for the courts. Courts should explicitly recognise that they are indulging in policy decisions. The policy behind native title is for indigenous interests to be recognised by the common law. Thus, the common law should, as a matter of policy, recognise native title in a way that is most consistent with indigenous concepts of the land. This, surely, is the aim of the doctrine of native title and the spirit behind the Mabo case. When the High Court comes to consider the appeal from Ward, it is my hope that they will remember this.
If extinguishment under the justification of the bundle of rights theory occurs, then we have moved one step forward and two steps back — to the position of Blackburn J in Milirrpum v Nabalco Pty Ltd,[147] where the bundle of rights theory effectively helps to deny the interests of indigenous people in the land. Native title may thus become an impotent promise — something which lawyers fight over but which has little practical benefit for indigenous people.
KATY BARNETT [*]
[*] [2000] FCAFC 191; (2000) 170 ALR 159 (‘Ward’).
[1] [2000] FCAFC 191; (2000) 170 ALR 159.
[2] Ben Ward brought the claim with a number of others on behalf of the Miriuwung and Gajerrong peoples.
[3] Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483.
[4] Ibid 508.
[5] (1993) 104 DLR (4th) 470, 670–2 (British Columbia Court of Appeal).
[6] There were six appeals and one cross-appeal before the Court. Five of the appeals were brought against orders made by Lee J at first instance, who determined that native title existed in the claim area. Western Australia, for example, appealed against the whole of the orders, declaration and determination of Lee J (save for the findings that extinguishment of native title had occurred in respect of certain specified areas). The Northern Territory appealed against the determination of native title in respect of the claim area within the Northern Territory, contending that native title had been extinguished by the grant of pastoral leases over the area or, in the alternative, that if native title continued to exist, that title should have been determined in favour of the Bindjen, Nyawamnyawam and Damberal groups, not the wider Miriuwung and Gajerrong people. Numerous other persons and corporations appealed against Lee J’s determination in so far as it affected land used or occupied by them. The sixth appeal concerned a consequential costs order. The particulars of each appeal and the cross-appeal are set out in Ward [2000] FCAFC 191; (2000) 170 ALR 159, 176–8.
[7] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 178.
[8] [1992] HCA 23; (1992) 175 CLR 1, 69 (Brennan J), 110 (Deane and Gaudron JJ) (‘Mabo’).
[9] [1995] HCA 47; (1995) 183 CLR 373, 452 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) (‘Native Title Act Case’).
[10] [1998] HCA 58; (1998) 195 CLR 96, 151 (Kirby J) (‘Fejo’).
[11] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 179–80.
[12] (1993) 104 DLR (4th) 470, 670–2 (Lambert JA).
[13] [1998] HCA 58; (1998) 195 CLR 96, 128 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[14] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 183.
[15] [1992] HCA 23; (1992) 175 CLR 1, 68.
[16] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 183–4.
[17] (1996) 187 CLR 1 (‘Wik’).
[18] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 184.
[19] See High Court of Australia Bulletin 2000 No 5 (2000) Australasian Legal Information Institute <http://www.austlii.edu.au/au/other/hca/bulletin/hcab0005.html> at 30 August 2000 (copy on file with author).
[20] See Ward [2000] FCAFC 191; (2000) 170 ALR 159, 186.
[21] [1998] HCA 58; (1998) 195 CLR 96, 130 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 154 (Kirby J). See also Alex Rorrison, ‘Native Title: “Bundle of Rights” or Interest in Land?’ (1999) 4(3) Native Title News 49, 51.
[22] (1996) 187 CLR 1, 221 (Kirby J).
[23] [1999] FCA 1668; (1999) 168 ALR 426, 438–9.
[24] [1998] HCA 58; (1998) 195 CLR 96, 127 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[25] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 181.
[26] Ibid 184.
[27] [1997] 3 SCR 1010, 1080–1; 153 DLR (4th) 193, 240–1.
[28] Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483, 508.
[29] See Rorrison, above n 21, 50.
[30] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 186.
[31] Ibid 185, citing Mabo [1992] HCA 23; (1992) 175 CLR 1, 69 (Brennan J) and Wik (1996) 187 CLR 1, 132 (Toohey J).
[32] Ibid.
[33] Ibid 188.
[34] Ibid (emphasis in original).
[35] Ibid 188–9.
[36] Kevin Gray and Susan Gray, ‘The Idea of Property in Land’ in Susan Bright and John Dewar (eds), Land Law: Themes and Perspectives (1998) 15.
[37] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 188.
[38] Ibid 189.
[39] See Stephen Munzer, A Theory of Property (1990) 16, in which the analogy of a bundle of sticks is used to describe the bundle of rights theory.
[40] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 232–3.
[41] See Land Act 1933 (WA) s 106(2). See ibid 233.
[42] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 242.
[43] Ibid 302.
[44] Ibid 267.
[45] Ibid 290.
[46] Ibid 296–7.
[47] Ibid 248.
[48] Ibid 329.
[49] Ibid.
[50] Ibid 329–31.
[51] Ibid 331.
[52] Ibid 331–2.
[53] Ibid 332–6.
[54] [1992] HCA 23; (1992) 175 CLR 1, 64 (Brennan J), 110–11 (Deane and Gaudron JJ), 195 (Toohey J).
[55] [1995] HCA 47; (1995) 183 CLR 373, 423 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[56] (1996) 187 CLR 1, 123–4 (Toohey J), 154–5 (Gaudron J), 168–9 (Gummow J), 247 (Kirby J).
[57] [1998] HCA 58; (1998) 195 CLR 96, 127 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[58] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 336. According to North J, ‘absolute inconsistency’ means that there is ‘an inconsistency between the rights created and native title which is absolute, total, complete or fundamental’: at 336.
[59] Ibid 336–7. See Wik (1996) 187 CLR 1, 125 (Toohey J); Fejo [1998] HCA 58; (1998) 195 CLR 96, 153 (Kirby J).
[60] [1999] HCA 53; (1999) 166 ALR 258 (‘Yanner’).
[61] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 357.
[62] (1996) 187 CLR 1, 94–5.
[64] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 349–51. See Yanner [1999] HCA 53; (1999) 166 ALR 258.
[65] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 351–2.
[66] Ibid 352.
[67] Ibid 184.
[68] Ibid 353.
[69] Ibid.
[70] [1992] HCA 23; (1992) 175 CLR 1, 51.
[71] [1999] HCA 53; (1999) 166 ALR 258, 269–70 (Gleeson CJ, Gaudron, Kirby and Hayne JJ).
[72] Gray and Gray, above n 36, cited in Ward [2000] FCAFC 191; (2000) 170 ALR 159, 188–9 (Beaumont and von Doussa JJ), 354–5 (North J).
[73] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 355 (emphasis removed), citing Gray and Gray, above n 36, 27.
[74] Yanner [1999] HCA 53; (1999) 166 ALR 258, 269–70 (Gleeson CJ, Gaudron, Kirby and Hayne JJ), cited in Ward [2000] FCAFC 191; (2000) 170 ALR 159, 187–8.
[75] Mabo [1992] HCA 23; (1992) 175 CLR 1, 69.
[76] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 356.
[77] 21 US (8 Wheat) 240 (1823).
[78] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 358.
[79] Ibid 359–62.
[80] Ibid 358, citing Laws LJ in Dutton v Manchester Airport plc [1999] EWCA Civ 596; [1999] 2 All ER 675, 687.
[81] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 360, 362.
[82] Ibid 368–74.
[83] Ibid 362–3.
[84] Ibid 363–5.
[85] Ibid 365–7.
[86] Ibid 374–6. North J does not define ‘cultural knowledge’, but notes that the right to maintain cultural knowledge follows from Lee J’s finding that: ‘Rules relating to control of knowledge of separate men’s and women’s laws are followed and regarded as important in the organisation of the community. There is a common belief that breach of an important aspect of Miriuwung and Gajerrong “law” will visit consequences upon that person’: Ward [2000] FCAFC 191; (2000) 170 ALR 159, 375, citing Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483, 538.
[87] See, eg, Wesley Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (1st ed, 1923); Antony Honoré, ‘Ownership’ in Anthony Guest (ed), Oxford Essays in Jurisprudence: A Collaborative Work (1961) 107. See also James Penner, ‘The “Bundle of Rights” Picture of Property’ (1996) 43 UCLA Law Review 711, 712.
[88] Ibid 713.
[89] Ibid. The following authors argue that the bundle of rights theory is the pre-eminent explanation of proprietary rights: Lawrence Becker, Property Rights: Philosophic Foundations (1977); Munzer, above n 39; Jeremy Waldron, The Right to Private Property (1988).
[92] Hohfeld, above n 87, 74–5.
[93] Ibid.
[95] Ibid 128–30.
[97] Ibid 734–6.
[98] Ibid 734.
[99] Ibid 737.
[100] See, eg, Honoré, above n 87, 109.
[101] Ibid 124–8.
[102] [1999] FCA 33; (1999) 84 FCR 423, 426.
[103] Penner, above n 87, 767.
[104] Ibid 739.
[105] Ibid 741.
[106] Ibid 739–41.
[107] Ibid 767–8.
[108] Ibid 768.
[109] Ibid 769.
[110] Ibid.
[111] Ibid 742.
[112] Ibid.
[113] Ibid 744.
[114] Ibid 743.
[115] Ibid 750.
[116] Ibid 784–5.
[117] Thomas Grey, ‘The Disintegration of Property’ in J Roland Pennock and John Chapman (eds), Property (1980) 69, 74.
[118] Ibid 81.
[119] Ibid 74.
[120] Barry Hoffmaster, ‘Between the Sacred and the Profane: Bodies, Property, and Patents in the Moore Case’ (1992) 7 Intellectual Property Journal 115, 128.
[121] 793 P 2d 479 (Cal 1990).
[122] Hoffmaster, above n 120, 130.
[123] Ibid 129.
[124] [1999] HCA 53; (1999) 166 ALR 258, 264 (Gleeson CJ, Gaudron, Kirby and Hayne JJ).
[125] Kevin Gray, ‘Property in Thin Air’ (1991) 50 Cambridge Law Journal 252, 252.
[126] Ibid 306.
[127] Ibid.
[128] [1937] HCA 45; (1937) 58 CLR 479. This case concerned the issue of whether there can be property in a spectacle.
[130] Ibid.
[131] Ibid 273–4.
[132] Ibid 280–92.
[133] Yanner [1999] HCA 53; (1999) 166 ALR 258, 264 (Gleeson CJ, Gaudron, Kirby and Hayne JJ) (citations omitted), citing Gray, above n 125, 252.
[134] [1982] HCA 69; (1982) 158 CLR 327, 358.
[136] Penner, above n 87, 767.
[137] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 353.
[138] Irene Watson, ‘Law and Indigenous Peoples: The Impact of Colonialism on Indigenous Cultures’ (1996) 14(1) Law in Context 107, 107.
[139] Kingsley Palmer, ‘Aboriginal Land Ownership among the Southern Pitjantjara of the Great Victoria Desert’ in Lester Hiatt (ed), Aboriginal Landowners: Contemporary Issues in the Determination of Traditional Aboriginal Land Ownership (1984) 123, 127.
[140] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 353.
[141] Palmer, above n 139, 127–8 (emphasis in original). Ngura means a place or country which has a special spiritual significance. Ngura walytja expresses the notion that a person and the country are one, and Palmer has glossed it as ‘countryman’: at 124.
[142] Galarrwuy Yunupingu, ‘A Letter from Black to White’ (1976) 2(6) Land Rights News 8, 9.
[144] Mabo [1992] HCA 23; (1992) 175 CLR 1, 61 (Brennan J), 89 (Deane and Gaudron JJ). Brennan J indicated that native title may be proprietary or personal and usufructuary, whereas Deane and Gaudron JJ considered native title to be personal in nature.
[145] Ward [2000] FCAFC 191; (2000) 170 ALR 159, 330.
[146] Michael Mansell, ‘The Court Gives an Inch but Takes Another Mile’ 2(57) Aboriginal Law Bulletin 4; Noel Pearson, ‘204 Years of Invisible Title’ in Margaret Stephenson and Suri Ratnapala (eds), Mabo — A Judicial Revolution (1993) 74.
[*] BA, LLB (Hons) (Melb); Legal Researcher, Court of Appeal, Supreme Court of Victoria. The views expressed are entirely my own and do not in any way represent the views of the Court of Appeal. This case note is dedicated to my dear friend, Sharon Barnes. I would like to thank Sharon Barnes and Daniel McCracken-Hewson for discussing their ideas with me. Thanks also to the Review’s anonymous referee for his or her useful comments. All errors remain my own.
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