A hope disillusioned, an opportunity lost? Reflections on common law native title and ten years of the Native Title Act.

• Jurisdiction: Australia
• Author: Tehan, Maureen
• Date: 01 August 2003

[It is 10 years since the Native Title Act 1993 (Cth) was passed in response to the High Court's Mabo decision. Those years have been marked by an interplay between the common law and statute. Following the High Court's decision in Ward and Yorta Yorta, this interplay has been starkly enunciated and redefined. The Act is dominant and the common law has been almost relegated, at least for the moment, to a historical artefact. Noel Pearson described the process most dramatically: 'Ten years in the sunshine of the Rule of Law was all that black Australians were fated to enjoy'. How is it that such a determinate view of the state of native title could be made a mere 10 years after the promise engendered by the Mabo decision? While there is little doubt that the nature of the rights emerging from both the common law and the Act have been significantly diminished by both the Native Title Amendment Act 1998 (Cth) and the recent decisions in Ward, Yorta Yorta and Wilson v Anderson, it is indisputable that the recognition and protection of native title as a result of Mabo provided the underpinning for a realignment of relationships between indigenous and nonindigenous Australians. Indigenous rights and interests in land can no longer be ignored or cast aside. This article argues that in spite of both legislation and the courts diminishing the concept of native title and the rights associated with it, the process of change unleashed by Mabo and the Native Title Act 1993 (Cth) cannot be reversed The question now is where this process of change will lead.]

CONTENTS

I Introduction II The Promise of Mabo: The High Court's 'Great Leap Forward'. A Before Mabo: The Common Law B Before Mabo: Statutory Recognition of Indigenous Rights C The 'Great Leap'. III Uneasy Tensions: Battles between the Common Law and Statute over Land and Resources IV The Native Title Act 1993 (Cth) A Recognition and Protection B Validation and the RDA C Applications: A Mechanism for Determining Claims to Native Title D Future Acts and the Right to Negotiate V The Allure of 'Certainty': Wik, the Ten Point Plan and the Native Title Amendment Act 1998 (Cth) VI 'Remnant Lands, Remnant Rights': The Recent High Court Decisions A Western Australia v Ward B Wilson v Anderson C Yorta Yorta v Victoria D Native Title after the Trilogy VII Another Story: Agreement-Making VIII Conclusion I INTRODUCTION

Land is at the centre of the discordant and legally-endorsed relationship of dispossession that marks the landscape of settler societies. (1) This idea of dispossession goes beyond the physical removal of people from land and encompasses ideas about land that are part of the imagination, psyche and memory. The spirits, beings and ideas about land that inhabited and animated the country prior to colonisation gave the land and people meanings that had nothing to do with the imaginings and meanings of the coloniser. (2) In the process of colonisation, the two complexes of power and meaning were in touch with each other and ultimately one was overridden by the other--never completely and never without resistance. The process of colonisation resulted in a complex of power of external origin in charge of a new geopolitical space. New meanings became engraved upon the landscape and in its peoples' consciousness. (3)

This complex of relationships and meanings is at the heart of the decision in Mabo v Queensland [No 2] (4) and the responses it provoked. The Native Title Act 1993 (Cth) ('NTA') was one such response. It is now almost 10 years since the Commonwealth Parliament passed the Act. On such anniversaries it is apposite to reflect upon the path travelled and where that path has led. This article is one story of that journey: reflecting upon and critically examining the substance and effect of the NTA, from where it came and where it has taken us.

The common law of native title and the Act are intimately entwined. Neither can be fully comprehended without reference to the other, and the interplay between them has given each its shape and form. The fact that the concept of native title has been shaped as much by the political environment as by the judicial decisions of the High Court means that any discussion of the NTA must reflect upon both the common law and the legislation itself. After all, both the Parliament and the courts have been responsible for the alternating delineation, expansion and curtailment of the rights of indigenous Australians) This serves as a reminder that native title, from a settler point of view, is as much about politics as it is about law. From an indigenous perspective, it is about life itself. (6)

Following the High Court's decisions in Western Australia v Ward, (7) Wilson v Anderson (8) and Yorta Yorta v Victoria, (9) the interplay between the common law and the NTA has been starkly enunciated and redefined. The Act is dominant and the common law has been almost relegated, at least for the moment, to a historical artefact. Noel Pearson described the process most dramatically: 'Ten years in the sunshine of the Rule of Law was all that black Australians were fated to enjoy'. (10)

How is it that such a determinate assessment of the state of native title could be made a mere 10 years after the promise engendered by the Mabo decision? Was this the outcome envisaged by the federal Parliament when it debated and passed the Act in 1993 or when the Act was amended in 1998? Was it the inevitable outcome of the political and social division that Mabo and the subsequent legislation revealed and that remains unreconciled? Is Pearson's view an accurate assessment of the present state of the law of native title or is it possible to read the current state of native title in a more expansive way? Even if Pearson's view is accurate, has the decade since Mabo produced changes and responses that cannot be undone? Has the 'sunshine of the Rule of Law' set or has it been temporarily clouded? Has a new course been charted?

These uncertainties illustrate the need for an exploration of the impact and meaning of native title and its legislative variations. The scope and content of the rights recognised by the Court in Mabo were varied and in some respects diminished by the NTA. (11) In relation to future uses of native title land and resources, the native title rights were arguably enhanced through the future act regime, (12) There is little doubt, however, that the nature of the rights that emerged from both the common law and the Act have been significantly diminished by both the Native Title Amendment Act 1998 (Cth) and the recent decisions in Ward, Wilson v Anderson and Yorta Yorta and, to a lesser extent, Commonwealth v Yarmirr. (13)

Arguably, the rights recognised in Mabo were never expansive. But equally, the rights there recognised have been slowly eroded with each new engagement with the institutions of the dominant legal system, whether the common law or the legislature. However, it is indisputable that the recognition and protection of native title afforded by Mabo provided the underpinning for a realignment of relationships between indigenous and non-indigenous Australians, including relationships with government and industry. Indigenous rights and interests in land could no longer be ignored. This was particularly so in relation to state jurisdictions and industry sectors that had traditionally disregarded indigenous rights. (14) This article argues that, in spite of both legislative and judicial limitation of the concept of native title and the rights associated with it, Mabo and the NTA unleashed a process of change that cannot be reversed. The question now is: where will this process of change lead?

II THE PROMISE OF MABO: THE HIGH COURT'S 'GREAT LEAP FORWARD'

Mabo was a watershed. The litigation lasted 10 years (15) and resulted in 'the first determination by the High Court of the rights of Aboriginal people to land at common law'. (16) The decision produced responses across the legal and political spectrum. According to former Chief Justice Sir Harry Gibbs, 'few, if any, [decisions] have given rise to such a diversity of responses, ranging from euphoria to deep anxiety'. (7) Indigenous people responded in a variety ways, some seeing it as a 'most cautious and belated recognition', (18) others as a self-serving decision giving indigenous people very little in terms of recognition of their rights in land. (19)

There was significant critical response from the non-indigenous community. Some questioned whether the Court had carried 'judicial activism too far in departing from principles that were thought to be settled for over a century'. (20) Judicial activism was the theme of much critical legal commentary, (21) while some criticism encompassed the likely adverse economic impact of the decision. (22) The cry of 'continued uncertainty' was heard from the resources sector, (23) while one critic, Hugh Morgan, focused on the Court's failure to perform its 'important duty of providing a legal and public defence of property', thus placing 'the economic and political future of Australia and our territorial integrity ... under threat' . (24)

The reactions were not unexpected. The decision was unsettling. For some it challenged and disrupted deeply--held notions about the constitutional basis of the Australian nation, (25) while others saw it as a 'cautious correction' (26) or an inevitable realignment of Australia's common law with that of other jurisdictions. (27) It reignited tensions between old adversaries: the resources sector and its supporters (including state governments), and indigenous interests. (28) It was described by Frank Brennan as a 'door which has been left slightly ajar by the High Court, now waiting to be prized open by a series of test cases and political agitation', but one which some miners and pastoralists saw 'as a door to be firmly closed before further uncertainty is caused.' (29) The state of uncertainty reflected...