Native title and the 'acquisition of property' under the Australian constitution.

• Jurisdiction: Australia
• Author: Brennan, Sean
• Date: 01 April 2004

[The 'just terms' guarantee in s 51 (xxxi) of the Constitution offers protection for the property rights of Australians, but does this protection extend to indigenous people who have native title rights and interests in land? Gummow J of the High Court has suggested the answer is no, at least where native title is extinguished by the grant of inconsistent rights over the same land to third parties. This article reviews recent case law on the meaning of 'property' and 'acquisition' under s 51 (xxxi). The Australian law on native title--in particular its characterisation, its content and its extinguishment--is examined and assessed against the law on s 51 (xxxi). The conclusion drawn is that in general the extinguishment of native title answers the description of an 'acquisition of property'. Gummow J's analysis that native title is inherently defeasible, and therefore that the "just terms' guarantee does not apply to its extinguishment by inconsistent grant, should be rejected on the basis of precedent and principle.]

I INTRODUCTION

The rights of indigenous peoples in relation to land and waters across Australia survived the acquisition of British sovereignty. (1) However, according to Western law and its doctrine of 'native title', many of these rights have now been extinguished, chiefly as a result of the Crown granting parcels of land to other people.

Since 1901, Australians have enjoyed protection of their property rights under s 51(xxxi) of the Constitution. A Commonwealth law that is concerned with the 'acquisition of property' is invalid unless the property is acquired on 'just terms'. (2) Gummow J, a judge whose views most often reflect those of the current High Court, (3) stated in Newcrest Mining (WA) Ltd v Commonwealth that the granting of rights inconsistent with those of indigenous people to third parties by the Crown does not attract the operation of that constitutional guarantee. (4) This article investigates that proposition and concludes that it is not well supported by precedent, policy or principle.

Two bodies of law are relevant to an examination of this area: the common law and statutory law of native title; and s 51 (xxxi) of the Constitution. The former, the law of native title, is only twelve years old. (5) In 2002, the High Court decided a trilogy of test cases: Western Australia v Ward, (6) Wilson v Anderson (7) and Members of the Yorta Yorta Aboriginal Community v Victoria. (8) Those decisions clarified the answers to some basic questions, but left a host of others unanswered. The law relating to s 51(xxxi) of the Constitution recently had 'a second life' (9) after a long period of quiescence following World War II. The flood of s 51(xxxi) eases decided by the High Court in the 1990s has now slowed to a trickle. Left behind is a rights guarantee of considerably broader scope than was previously thought to exist under the section, but a body of law with many disparate strands and few unifying principles. (10)

Substantial gaps in both bodies of law, therefore, limit our ability to draw conclusions concerning the 'just terms' guarantee and the extinguishment of native title in particular fact situations. For example, courts have found it difficult to characterise and describe, in Western legal terms, what it means to have recognisable native title. It also remains unclear why one Crown action might 'regulate' native title while another is said to 'extinguish' it. The dividing line in s 51(xxxi) law between legitimate regulation and the compensable 'acquisition of property' is also difficult to define.

Nonetheless, it is possible to tackle the intersection of native title law with the law on constitutional 'acquisitions of property' at a level of general principle and appellate court authority. This article addresses three questions. First, is native title 'property'? Second, does the extinguishment of native title amount to an 'acquisition'? Third, is Gummow J correct in Newcrest in saying that native title, though 'property', is an inherently defeasible right that is outside the category of interests protected by the 'just terms' guarantee? (11)

Another major threshold question in s 51(xxxi) law--the characterisation of a statute as one with respect to the acquisition of property is not dealt with in this article. Briefly, however, I contend that as the Native Title Act 1993 (Cth) has been treated by the High Court as an 'exclusive code' governing the extinguishment and impairment of native title, (12) it is appropriately characterised as a law with respect to the acquisition of property, whatever aspect of characterisation doctrine (13) might be employed to contest that proposition.

II NATIVE TITLE AS 'PROPERTY'

A Conceptualising Native Title: Different Streams of Thought

The characterisation and description of the content of indigenous land rights and interests in Western legal terms is one of the abiding questions of native title law in Australia. Even after the 2002 trilogy of High Court test cases, the answers remain elusive. (14) This suggests that establishing that native title rights and interests are 'property' in the constitutional sense might be difficult. A heavy weight of constitutional authority, however, points to a simple conclusion: as valuable legal rights (15) in relation to land and waters, native title rights and interests are property in the s 51(xxxi) sense of the word. I will support this conclusion by first describing the ways in which native title rights and interests have been conceptualised, and then relating that conceptualisation to the case law concerning the meaning of 'property' in the context of the constitutional guarantee.

In defining the character and content of native title, the High Court is addressing an age-old challenge for the law: how to translate a complex social reality into legal concepts and language. Native title involves additional complications, including the demanding cross-cultural nature of the inquiry and the history of discrimination and dispossession against which the contemporary inquiry must now be conducted. Two streams of thought can be identified, each well-established in the current Australian law recognising traditional indigenous rights in land. These streams remain unreconciled (16) and to some extent are epitomised in Brennan J's judgment in Mabo v Queensland [No 2] (17) where he referred to native title as both ownership and something more fact-specific and dependent on local law and custom. (18)

1 Native Title as 'Title'

The first stream of thought approaches these questions at a high level of generality and contains a number of related ideas. First, it recognises in the assertions of native title by indigenous peoples under traditional law the same sense of dominion over land that societies across the world assert in relation to territory, and equates it with ownership or something similar. In Mabo [No 2], with fairly modest evidence regarding the operation of traditional law and custom, (19) the High Court was comfortable making an order that the Meriam people enjoyed possession, occupation, use and enjoyment of the island of Mer 'as against the whole world'. (20) In no less than 21 of the 30 positive determinations of native title since Mabo [No 2] (some of them ranging up to 136 000 square kilometres in area), indigenous groups have been recognised as enjoying possession, occupation, use and enjoyment of a determination area to the exclusion of all others. (21) Such plenary determinations resemble the choice made by a number of Australian legislatures when confronted with the task of translating traditional connection to land into Western property concepts under land rights legislation. Traditional lands have been returned as freehold under statutory schemes operating in the Northern Territory, (22) Queensland (23) and South Australia, (24) as has land granted on other bases (including residence and historical association) in other jurisdictions.

In Yanner v Eaton, the High Court characterised native title as 'a perception of socially constituted fact'. (25) This phrase was coined by the English writers Kevin Gray and Susan Francis Gray to describe how 'property' is a term used where the actual facts 'on the ground' (26) are so 'essentially undeniable' (27) as to render any non-proprietary description of a person's interest improbable or unrealistic. One example, they said, is the native title of Australia's indigenous peoples:

Brennan J ... declined to believe that the indigenous inhabitants of a settled colony lost all 'proprietary interest' in the land which they continued to occupy or could 'lawfully have been driven into the sea at any time after annexation'. For Brennan J, 'a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor ... The ownership of land within a territory in the exclusive occupation of a people must be vested in that people.' Accordingly Brennan J accepted--and it is now widely agreed to be clear law--that the customary land claims of Aboriginals comprise a 'proprietary community title' which represents 'a burden on the Crown's radical title' even after the assumption of Crown sovereignty over the territory in question. (28) As this extract indicates, a related idea is the notion of 'title' within the concept of native title. Although sometimes disparaged as Eurocentric or potentially misleading, (29) the 'title' idea has been stubbornly persistent in case law. (30) Individual, often usufructuary or subsistence, rights (to hunt, fish, and so on) are conceived in both case law and legal and anthropological commentary as derivative of, or pendant upon, an underlying title to land. (31) The extent to which this idea can coexist with the far-reaching doctrine of partial extinguishment that emerged from Ward remains unresolved...