Land and Law

11.1 Historical Background
11.2 The Mabo Case and Native Title
11.3 Legalism and Constitutionalism in the High Court on Mabo
11.4 The Wik Judgement and the Pastoral Lease Controversy
11.5 Legalism and Constitutionalism in the Wik judgement

Active citizenship in a liberal democracy may require an understanding of and mediation between cultural and legal difference. This week examines the role of disputes over land and land laws in the Australian colonies and the Commonwealth of Australia. Conflicts between indigenous peoples, pastoralists, farmers, miners and governments will be considered, as well as those between indigenous law and State, Commonwealth and international law. The topic focuses upon the different rights and the responsibilities for the land, with an emphasis upon competing conceptions of land, law and property rights. One of your tasks will be to analyse current debates over land and the impact of the High Court judgements in Mabo and Wik. These decisions were central in recognising 'native title' to land in Australia and effectively changed the country's system of property law. Much of the recent debates over these issues involve controversy over the role of history, both in revising the accepted 'facts' of Australian history, and in the use of such revised history in the judgements of the High Court. In examining these issues you will consider further the doctrine of the separation of powers that governs the power relationship between the Commonwealth Parliament, the Government and the High Court.

1.Historical Background

The core of Aboriginal philosophy is their spiritual and material relationship to land. Land was and is central to Aboriginal way of life, their culture and their resource base. W.E.H. Stanner (1969: 44) has described the difficulties that the English language confronts in trying to convey the meanings that Aboriginal people give to land:

No English words are good enough to give a sense of the links between an aboriginal group and its homeland. Our word 'home', warm and suggestive though it be, does not match the aboriginal word that may mean 'camp', 'hearth', 'everlasting home', 'totem place', 'life-source', 'spirit centre' and much else all in one. Our word 'land' is too sparse and meagre. We can scarcely use it except with economic overtones unless we happen to be poets.

The Aborigines conceived of forces emanating from the land that bore and produced life of all kinds. Such powers were concentrated at especially significant sites such as wells, rocks-holes, waterholes, creeks, and trees.

The spiritual knowledge surrounding these places, the ritual techniques, the legends, the songs and interpretations that accompany them, were the property of individual members [male and female] of clans. Both men and women had the duty and privilege to use their inherited knowledge to tend these sites and the surrounding land. The land provided the matrix of existence and meaning for organic life, plants, animals, and people alike. The fulfilment of religious duties bestowed the right on those individuals in charge, and on the clan as a whole, to consider this piece of land theirs. Together these lands constituted the clan's estate. To be denied access to clan or tribal territories and sacred areas was to be deprived of vital natural, material and spiritual resources. Even today, where Aborigines have not visited their homelands for decades they must still maintain their religious obligations or relinquish their ownership.

Many early settlers and their governments had limited knowledge of the conditions of Aboriginal life and culture. They often assumed that Aborigines lived a primitive and lawless existence, and had no significant attachment to their lands. One of the most persistent explanations advanced for the widespread failure of the settlers to negotiate with the Aborigines about land and related matters was that their society was 'scattered, disorganised and extremely backward' (Andrews cited in Reynolds 1996b: 93).

Even where the settlers did know something about Aboriginal attachment to, and ownership of, land they usually ignored and overrode them. It is not surprising therefore that much conflict occurred between Aborigines and white settlers over land in Australia. These conflicts led to a number of massacres, pitched battles and extended civil wars taking place during the colonisation of Australia. The new settlers often treated the Aborigines in the same way as they would wild animals that they found on taking up new territory. The consequences for indigenous people were devastating.

Read:The way we civilise. [1880] 1988. Queenslander 1 May: 560. In W.R. Johnston ed. A Documentary History of Queensland. St Lucia: University of Queensland Press, pp. 95—6.

 

It is for these reasons that the historian Henry Reynolds (1989:70) has observed that debate and conflict over the land question (such as the nature of land, ownership, development, progress) 'has been part of Australian history since 1788'. That is, debate about Aboriginal land rights had been continuing for a over a hundred years before the issue reached the Australian courts (Reynolds 1987: 133).

Conflict over land was particularly strong in the vast States of Queensland and Western Australia. In Queensland, at the time of the granting of responsible government in 1859, there were only 20,000 Europeans. The colonist were certainly outnumbered by the Aborigines who occupied more than half the land within the colonial boundaries (Reynolds 1989: 195). The economy of the colony of Queensland was dominated by the pastoral industry and this industry relied greatly on work performed by the indigenous people. In remote areas of the Australian continent the pastoral industry was 'totally dependent on generations of skilled Aboriginal labour' (Reynolds 1996: 28).

During the early days of colonial settlement, however, there was some recognition that the Aborigines were 'the original possessors of Australia(Reynolds 1992: 72). The common law of England, which 'determined relations between whites and Aborigines from 1788 onwards' (Reynolds 1992: 19) was fully able to accommodate the notion that title to waste or unused land could be secure title. Indeed, 'title to waste land in Britain was as secure as title to the best farm land' and there was 'absolutely no obligation to cultivate'(Reynolds 1992: 19). So even if it had been the case that the Aborigines did not use the land, the law could have accommodated title to such land. The law could also accommodate a diversity of kinds of land ownership, holdings or tenure, and could also accommodate a range of relations between owners and occupiers of land and the State. Because it had grown over centuries from a diverse, local, pre-industrial society, Reynolds says that by 1788: 'English law was flexible enough to recognise very different forms of land tenure'(Reynolds 1992: 20).

Yet when the courts were finally called into the land rights debate, they initially did not recognise the existence of indigenous property rights. The main reason for this neglect of indigenous rights and the dispossession of the indigenous inhabitants was that our legal system had long accepted a principle of law called terra nullius as justifying the British settlement of Australia in 1788. This principle was pronounced by the highest English court the Privy Council, in a case decided in 1889. In this case, Cooper v Stuart, the Privy Council declared that Australia was terra nullius or uninhabited territory in 1788. Classified in this way, Australia was regarded as 'no man's land' or 'land belonging to no-one'.

This early legal justification for dispossession may be understood with reference to an 18th century interpretation of an international convention concerning the acquisition of colonies. In the 18th century, in a period of European expansion throughout the world, it was seen as acceptable and legitimate for countries to provide a sovereign where one did not exist. If a region were not possessed by a rival European state then acquisition could occur by one of three methods,

Conquest could occur through the forcible imposition of colonial rule by military means. Cession describes acquisition achieved through the consent, agreement or treaty with the inhabitants in the region. This method might involve purchase of land or rights to settle in it. Under the widely accepted terms of both conquest and cession, the laws of the original inhabitants were to remain in force until and unless specifically replaced by those of the imperial power (Blackstone 1765: 104—5). The third method of acquisition was by unilateral possession on the basis of first discovery and effective occupation by colonisers. In this case the region would be called a 'settled colony'. This latter course, however, could only occur where the land was declared terra nullius, which, as we have seen, means land that is 'practically unoccupied'(O'Connor 1997: 218).

Once the land had been 'discovered', the representatives of the colonising power then had to confirm sovereignty by formally claiming it for their sovereign. The next step in confirming sovereignty was to transfer people by immigration and maintain effective occupation and settlement of the land. This occupation and settlement also automatically brought with it the laws and customs of the colonising nation and, just as important, its military presence. Where the land was deemed to be uninhabited and then settled by a colonial power such as Great Britain, then the common laws and statutes of that country were considered to have immediate effect. Where the colonising power gained territory by conquest or ceded by treaty, however, the original laws of the conquered people were to remain in force until the new sovereign or ruler formally changed them.

Because Aborigines appeared to have no recognisable laws or characteristics of civilisation such as a settled form of cultivation, they were thought to range over the land rather possessing or occupying it. For these reasons, the land mass of Australia was deemed to be unoccupied or terra nullius. On this view, the white settlers were the first to 'occupy' the land and therefore the first to possess it. According to this application of the doctrine of terra nullius, Aboriginal laws had no force, and Aborigines had no entitlement to land, other than on terms dictated by the British Crown. It was also generally assumed that the imposition of British sovereignty also meant that the Crown automatically owned all land. As Justice Kirby (Godden 1997a: 134) said in Wik, determining the foundation of Australia's land law in this way provided justification for the notion that, upon settlement, Australia's lands became in law the property of the King of England.

These assumptions were not seriously tested in the Australian courts until 1971. In that year, Justice Blackburn of the Supreme Court of the Northern Territory Supreme Court decided that the British claim of sovereignty over Australia extinguished any indigenous property rights (Reynolds 1987: 133). Blackburn made his decision in a case entitled Milirrpum v Nabalco, that became known as the Gove Land Rights case. Justice Blackburn (cited Reynolds 1987: 133) pronounced that 'the only source of property was the Crown'. This decision reinforced the earlier 1889 decision of the Privy Council and confirmed the basic assumption of Australian property law that native title to land did not survive the annexation of the Australian colonies to the British Crown (O'Connor 1997: 217). It was not until 1992 that the highest court in Australia, the High Court, decided that this assumption or 'legal fiction' was incorrect. In Mabo v Queensland (No 2) (1992) 175 CLR1 the High Court rejected the doctrine of terra nullius and affirmed a common law doctrine of native title (O'Connor 1997: 217). Given the legal precedents and social history of the country, the Mabo judgement was controversial.

2.The Mabo Case and Native Title

There has been no dispute of the fact that Australia was claimed and colonised by the British in 1788. Much dispute has arisen, however, over whether Australia was 'settled' or 'conquered'. For if Australia was 'settled', the ruling 'legal fiction' or presumption was that there were no people here to disturb, and with whom a formal treaty ought to have been concluded. On the other hand, if Australia was conquered, there must have been people there to defeat. In this case, the indigenous laws and rights ought to have been recognised until they were explicitly replaced by British law.

This was the focus of part of the decision in Mabo in 1992. It is usually said that with this decision the High Court recognised native title to land. Native title is the term courts have applied to indigenous peoples' land law. With this decision the High Court transformed the common law and more specifically the property law of Australia. That is, the court recognised that Aboriginal and Torres Strait Islander people have certain common law rights to land which they can claim before the courts.

The significance of the Mabo judgement also may be understood with reference to the traditional ways in which the Crown has distributed land in Australia. Crown land is land owned or controlled by state or federal governments. A Crown grant of land is the way that the Crown makes use of its land. For example, the Crown may lease land, or sell it as freehold, or approve mineral exploration or development on it. This is also the source of the property rights in land with which we are most familiar. In Mabo, however, the High Court allowed for 'common law recognition of rights in land which arise in some way other than by Crown grant, such as by the traditional use of land' (Skapinker 1997: 107). Such a decision seemed revolutionary only because the Australian application of the ruling doctrines of English land law had not been strongly challenged in the courts until then.

The High Court argued in support of its decision through a combination of legal reasoning and reference to the historical facts of the dispossession of indigenous people. The High Court's turning to history to assess the law is another 'revolutionary' aspect to the decision. The High Court's use of Australian history is so central to its argument that Godden (1997a: 133) has suggested that in the Mabo judgments Australia underwent a revision of 'legal memory'. For example, the High Court explained in some detail the nature of native title in Mabo (no2). It decided that native title is proved by evidence of 'the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory'(1977) 175 CLR 1 at 42 per Brennan J). Justice Brennan (1992) 175 CLR 1 at 44) explains why the Meriam people of the Murray Islands in the Torres Strait who had first brought the Mabo claim, proved native title:

The Meriam people asserted an exclusive right to occupy the Murray Islands and, as a community, held a interest in the Islands. They have maintained their identity as a people and they observe customs which are traditionally based … . Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed. Here, the Meriam people have maintained their own identity and their own customs. The Murray Islands clearly remain their home country. Their land disputes have been dealt with over the years by the Island Court in accordance with the customs of the Meriam people.

Another controversial feature of the Mabo decision was that it did not limit its judgement to a finding on native title in the Murray Island in the Torres Strait. The High Court recognised that native title may well have continued to exist elsewhere in Australia, and that it could also be claimed through the courts. In relation to future claimants of native title, Brennan also indicated some of the matters that would have to be proved in order to establish its continued existence. What is significant here is that Brennan's judgement relies on an assessment of the historical facts of land ownership in the Murray Islands and elsewhere in Australia. Partly for these reasons, the High Court decided that native title depends upon indigenous people demonstrating their continuing association with the land.

STUDY EXERCISE 11.1

Read:L. Godden, 1997a. Wik: Legal Memory and History. Griffith Law Review 6: 122—43.

  1. Why does Godden claim that Mabo and Wik illustrate the High Court's redefinition of legal memory?  Answer

  2. How does Godden consider that Mabo and Wik illustrate changing visions of history in law?  Answer

  3. What legal fiction was rendered irrelevant by the changed legal memory?  Answer

  4. What ultimately became the declared legal memory once that fiction was irrelevant?  Answer

 

One practical problem raised by the Mabo judgement was that without any other legal procedures for establishing native title, any future claims would have to take the long and expensive path of action before the High Court. For this reason, in 1993 the Labor government under Prime Minister Paul Keating enacted the Native Title Act which established specific institutions to adjudicate native title claims (O'Connor 1997: 222). This act of parliament aimed to give effect to the High Court decision in Mabo and manage the process of claiming land through new land courts called Native Title Tribunals.

Although the turning point brought about by the Mabo case and the new institutions created by the Native Title Act are of great legal and symbolic significance, one should not exaggerate their practical impact upon indigenous people in Australia. The Prime Minister of the time, Paul Keating, acknowledged that the Mabo judgement and the new native title laws would benefit only a few Aboriginal people. This was partly because of the limitations the act placed on the claiming of land:

Most [Aboriginal people] will not be able to prove the continuing association with their land necessary to claim native title. Many retain a strong attachment to their traditional country, but will be denied native title rights as a result of prior alienation of the land concerned. Many also remain on the margins of this country's economic, social and cultural life (Keating cited in Rush 1997: 158).

It is for these reasons that Commonwealth Governments have taken other policy measures to bring social justice to Aboriginal and Torres Strait Islander people, especially those that cannot claim native title to land.

3.Legalism and Constitutionalism in the High Court on Mabo

One of the critical elements of the Mabo judgement was that the High Court did not produce a narrow form of legal interpretation, in support of its decision. Instead, the court took factors of an economic, social and historical nature into account. That is, it took a more constitutionalist approach. For example, the judgement referred to the values of justice and the moral stature of the Australian nation. Had the High Court adopted a strictly legalistic approach to the law, focussing only on the few Australian decisions available, it would not have recognised Aboriginal land rights. Strict adherence to this form of legal reasoning, known, as you learned in Week 5, as legalism, would have endorsed the 1889 principle of the Privy Council, accepted by Justice Blackburn in the Gove Land Rights case. This form of reasoning would have provided an illustration of what was observed in Week 5, that legalism tends to prevent judges from engaging directly in politics and policy deliberations. Although the only dissenting judge, Dawson J, took the legalist strategy, this was not the path taken by the majority judges in the Mabo case.

The majority judges appealed to core values embedded in the common law. Their central concern was that the common law itself should not foster injustice or reproduce past injustices. The judicial references are usually in terms of local and specific injustices, or general references to contemporary international standards of justice and human rights. By implication, some larger conception of justice lies at the heart of the common law, but this is nowhere developed in detail by the court. Nevertheless, it would be surprising if the judges did not hold a broader sense of the basic rationale behind the common law, or the ancient values of justice embedded in it.

Perhaps the strongest expression of the moral element is found in Deane and Gaudron JJ's argument. They write (Mabo 1992: 82):

If this were any ordinary case, the court would not be justified in reopening the validity of fundamental propositions which have been endorsed by long-established authority for more than one hundred and fifty years ... . Far from being ordinary, however, the circumstances of the present case make it unique. As has been seen, the two propositions in question [i.e. terra nullius and absolute Crown ownership] provided the legal basis for the dispossession of the Aboriginal peoples of most of their traditional lands. The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation.

In this passage and elsewhere, Deane and Gaudron JJ resort to the language of moral condemnation. In describing the history of the dispossession of the native inhabitants, for example, they (Mabo 1992: 79) speak of 'the conflagration of oppression and conflict which was ... to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame.' Nor do they apologise (Mabo 1992: 91) for this language which they admit may seem to some 'unusually emotive for a judgement of this court'. They profess not to be trespassing into the area of the assessment and attribution of moral guilt, but have used 'unrestrained language' because the full facts of Aboriginal dispossession are of critical importance in assessing the legitimacy of the propositions that the continent was 'practically unoccupied' for legal purposes, and that beneficial ownership was vested in the Crown.

In review, the majority judges argued that Aboriginal people ought, on a correct interpretation of established law, to have been accorded legal rights to property after 1788, but were not. The law was wrong, and in its error it permitted grave injustices to occur. Since it was the law, however, no illegality could be said to be involved in the dispossession as such. Consequently, only the perceived necessity of discarding an unjust law can be proposed to justify the overthrow of long-established legal doctrine. In addition, to fail to act in this way is to maintain the nation of Australia in a morally diminished state.

Another major break that the High Court made with a strictly legalistic approach was in the references made to Australia's obligations to its indigenous people under international law. International law is the law largely developed through the United Nations and through international treaties and conventions. These have more of a moral than legal force at the level of the nation state. Once a nation signs a convention or treaty it is usually bound to translate the spirit of that treaty into its local law. Much international law deals with fundamental principles of human rights such as the right not to be discriminated against on the basis of race or gender. Because Australia had enacted the Racial Discrimination Act in 1975 in recognition of its obligations under the international Convention on the Elimination of all Forms of Discrimination, the High Court referred in Mabo to principles of international law as well as to Australian property law.

Not all Australian commentators have concurred with the High Court's reasoning. Among these the conservative historian Geoffrey Blainey has criticised the judgement.

Read:G. Blainey, 1993. Mabo decision looked back through modern blinkers. Australian 10 November: 9.

 

On the other hand there are Australian conservatives who have argued strongly in support of the High Court's decision. Robert Manne, a leading conservative and former editor of the journal Quadrant, has argued in support of the Hugh Court's Mabo judgement.

Read:R. Manne, 1997. Mabo: Why the right is wrong. Australian 8 April: 15.

 

Nonetheless, Blainey and Manne represent only a small sample of the variety of Australian views on the High Court's recognition of native title rights in the common law.

4.The Wik Judgement and the Pastoral Lease Controversy

As noted above, Crown land is land owned or controlled by the governments. Furthermore, large tracts of that land are still leased to graziers so they may graze cattle. In the States of Western Australia and Queensland, the majority of Australian pastoral land is leased from the government. These pastoral leases are generally for grazing purposes and cover about 40 per cent of total Australian land area (O'Connor 1997: 220). Many Aboriginal people also live in these more isolated rural areas following their older way of life. The Wik and Thayorre peoples of Cape York Peninsula lived on their traditional land which covered current and former pastoral leases. These indigenous groups took their case to the High Court to test whether pastoral leases extinguished what they saw as their native title rights.

The historian Henry Reynolds has written influential papers on this subject. In the following reading, written in appraisal of the Mabo judgement, and before the handing down of the Wik judgement, Reynolds provides useful background to the issues that were at stake.

STUDY EXERCISE 11.2

Read:H. Reynolds, 1993. Native title and pastoral leases. In M.A. Stephenson and S. Ratnapala eds. Mabo: A Judicial Revolution. St Lucia: University of Queensland Press, pp. 119-31.

1.What was the intention of Colonial Office officials with respect to the relationship between Aboriginal interests and the rapid pastoral expansion in Australia in the 1840's, particularly 1847-49?  Answer

2.How did the State colonial leases fulfil the intentions of the Imperial government expressed in 1847-49?   Answer

3.How might Aboriginal interests in the Australian pastoral lands be validly extinguished by the Crown according to the High Court in Mabo?  Answer

4.What does Reynolds call, by way of conclusion, upon governments to do and why does he consider it vital, in both a legal and historical sense, that they take this action?  Answer

 

In the case, The Wik Peoples v Queensland (1996) 141 ALR 129, the High Court decided in a split decision (4:3) that pastoral leases and native title could co-exist. That is, the High Court decided that pastoral leases were not inconsistent with, and did not extinguish, native title. It found further, that where there was any inconsistency between the two, the rights of the pastoralists would prevail. Thus in the Wik judgement the court pronounced the broad principle of coexistence, but, as in the earlier Mabo judgement, it left the many practical details to be worked out in parliamentary legislation (O'Connor 1997: 222).

In Wik, the majority of the judges looked to the nature of the pastoral leases themselves and characterised the matter as one of property law. Upon closer examination, these leases proved at law more in the nature of licences, as unlike traditional common law leases, they do not grant exclusive possession. Traditional 'common law leases' grant the owners exclusive possession which means that they may exclude other people from the property, including even the owner. The court found that a pastoral lease involves a right to pasture stock but that this does not in itself amount to exclusive possession (Mason 1997: 825). To call a pastoral lease a 'lease' may always have been a misnomer, for it may amount only to a 'permissive occupancy or licence' (Mason 1997: 825).

The majority judges concluded that the history of pastoral leases was such as to indicate that government granted them precisely in order to maintain some form of control and hence allowing for some form of co-existence with other property interests. Kirby J said that the use of the land in the pastoral leases illustrated the kind of practical physical conditions for which pastoral leases were created by the Queensland Parliament (1996) 187 CLR 1 at 233). This involved a very limited occupation of the land and such limited occupation was 'regarded as normal under pastoral leases' (1996) 187 CLR 1 at 233) to the extent that to talk of 'exclusive possession' or 'exclusive occupation' had 'an unreal quality' (1996) 187 CLR 1 at 233).

This use of historical evidence was strong in Wik, where Toohey J and Gaudron J drew on early colonial correspondence. These records confirmed that one of the aims of the early legislative enactments granting pastoral leases was to stop the atrocities committed on Aboriginals by squatters and further than a squatter's licence could be revoked if the licensee was 'convicted of any malicious injury committed upon or against any aboriginal native or other persons.' (Dorsett 1997: 115, citing (1996) 187 CLR 1 at 119 per Toohey J) For Toohey J (ibid) such provisions indicated that the Crown did contemplate that Aboriginals would remain on licensed lands. Chief Justice Brennan, who was in the minority in Wik (and majority in Mabo) appeared to consider (perhaps correctly) that great uncertainty would result from a finding of co-existence and that this was sufficient reason for rejecting the claim (ref??).

The decision of the majority judges forced the pastoral leaseholders to confront the substance of their rights under their 'leases'. Various critics have argued that such pastoralists had not been complying with the limitations of the Queensland leases for decades. There was thus an argument that if those leases were not 'true leases'(O'Connor 1997: 222) but 'lesser statutory interests'(O'Connor 1997: 222) then there was a need to clarify the precise content of those rights and to update the statutes so that account was taken of 'the range of land-use activities that comprise modern pastoral practices' (O'Connor 1997: 222, citing Love 1997:6—8). Not only were the original colonial leases meant to fulfil the intentions of the Imperial government to recognise the rights of the Aboriginal inhabitants (Reynolds 1993: 128) but more recently there was an environmental purpose to the leasehold limitations (Taylor 1993). That such a lease had earlier been called a 'non-exclusive licence' (van Hattem 1994: 200) involving concurrent land use, justifies the majority view in Wik.

The majority decision stemmed quite consistently from the characterisation of the pastoral lease as 'something other than a lease'(O'Connor 1997: 221) despite its nomenclature. They therefore held that native title and pastoral leases could co-exist. The majority judges decided that the purpose of the pastoral lease had never been to exclude traditional Aboriginal hunting and gathering rights or to authorise pastoralists to displace the Aborigines(O'Connor 1997:221). This reasoning brought the Queensland leases into line with the South Australian equivalent, which had always allowed for a statutory right of access (Reynolds 1993: 128). The possibility of multiple land-use had always been accepted more easily in States like South Australia, where statutes have allowed more explicitly for Aboriginal access rights.

O'Connor (1997: 222) writes that the 'notion that different interests can coexist in the one parcel of land is quite unexceptional in property law.' If we consider the historical practices in Great Britain, exclusive use of land is the revolutionary departure from the principles of Anglo-saxon law. In Australia also, legal and other rules have been developed for 'resolving conflicts about priority and enjoyment' with respect to certain kinds of long established interests that have coexisted in our system of property law (O'Connor 1997: 222). For example, different persons may hold freehold, leasehold, and mining titles over the same portion of land, while another may have an easement of right of way. Because of the distinctive historical evolution of Australian land settlement, however, no satisfactory legal regime had been worked out with respect to coexistence of native title and pastoral leases.

The High Court decisions in Mabo and Wik have raised a number of issues for Australian governments, pastoralists and indigenous people. Although the Commonwealth Government has established Native Title Tribunals to resolve the conflict of interests, there are many who think that there ought to be other non-judicial ways of resolving problems of co-existence and access to land. One strategy used in North Queensland has been to broker voluntary 'regional agreements' between the relevant parties. The 'Cape York Heads of Agreement', made between cattle producers, pastoralists, Aborigines, miners and environmentalists over rights of access to land, is sometimes advanced as a successful example of a comprehensive land-management regime that went beyond issues of access.

Peter Yu, the Executive Director of the Kimberley Land Council has argued that regional agreements could provide a 'way out of the Wik chaos and confusion'. Yu argues in support of regional agreements because they would recognise that the circumstances in each region are different. He claims that the landholding arrangements, economic structure and population composition in the Kimberley region of WA are quite different, for example, from those in Cape York, the Pilbara, Central Australia or 'any other region where pastoral leases are a major feature of the land tenure system' (Yu 1997: 11).

Read:P. Yu, 1997. A solution that gives rights to all. Australian 22 January: 11.

 

For Yu, those regional agreements must have at least three outcomes. In particular, they must provide:

In a letter to the editor of the Australian newspaper, David Kempton of the Cattleman's Union also indicates the advantages of a 'negotiated' approach to conflict.

Read:D. Kempton, 1997. Only negotiation can resolve Wik. Australian 3 February: 8.

 

In reply to these claims, Rob Borbridge (1997), the National Party Premier of Queensland at the time, resolutely rejected the alleged benefits of the strategy.

Read:R. Borbridge, 1997. Letter to the Editor: Cape deal is no shining example. Weekend Australian 8—9 February: 18.

 

Premier Borbridge argued that the Cape York Agreement had been poorly developed, and had failed to provide anything other than 'an empty symbol for those prepared to engage in simplistic wishful thinking on complex native title issues'. After much debate inside and outside parliament, the Commonwealth Government eventually decided (1998) against legislating to extinguish native title on pastoral leases, but amended the Native Title Act to put further restrictions on the claiming of native title by indigenous people.

These political debates indicate the various tensions that have come about with the recognition of native title rights in Australia. They also demonstrate the political possibilities for successful civic action if the contending parties accept the principle of mutual cooperation and want to pursue options to settle their differences outside the formal legal system of courts. The case suggests that not all serious conflicts between citizens need to be determined through the courts or decided by political leaders. Some critics would argue further that Australian democracy would only be strengthened if citizens were to seek just outcomes to conflict by negotiation and voluntary cooperation. In many respects, it is argued that this is a preferable option to that of having decisions made through the courts or solutions imposed by governments.

5.Legalism and Constitutionalism in the Wik judgement

For some writers the High Court's Mabo judgement synthesised and rejected a racist legacy, and the decisions are eloquent in their recognition of injustice. It has been said that the High Court 'boldly rewrote the common law of Australia, invoking policy considerations in justification' (O'Connor 1997: 218). Besides the issues raised above, the decision provoked considerable debate about the limits of judicial creativity in Australia (Lindell 1998: 289). This points to the often uneasy relationship between the aims of government and judicial activism. As in the Mabo judgement, questions about legalism, constitutionalism and accusations of judicial activism were levelled at the High Court's Wik judgement.

STUDY EXERCISE 11.3

Read:P. O'Connor, 1997. The Wik decision: Judicial activism or conventional ruling? Agenda 4(2): 217—36.

1.Over what land did the Wik people claim native title in the Wik case?  Answer

2.What were the main issues the High Court was asked to determine in Wik ?   Answer

3.What types of interests can co-exist in the one parcel of land in property law?   Answer

4.What is the difference with native title?   Answer

5.What does O'Connor consider the likely consequences of any extinguishment of native title on pastoral leases?  Answer

 

The contrary view claims that the reasoning used by the Court 'did not follow earlier perceptions of the effect of European settlement.' (Ibid., citing Jackson, D., 'The Role of the Chief Justice' in Saunders, op. cit., p. 21 at 25 ) O'Connor has observed, however, that for many critics, 'it was tempting to assume that the High Court had engaged in judicial activism, deciding according to what it thought the law ought to be instead of applying existing principles, and arrogating to itself the role of legislator' (O'Connor 1997:217).

Conclusion

This week's study has examined a number of contentious issues surrounding conflicts over law and land in Australia. The first issue concerns the role of judges in 'making law' and whether the High Court of Australia has usurped the law-making function of the Commonwealth Parliament. Since the extension of the right to vote, it has been commonly believed that only the democratically elected legislature 'make the law.' Nonetheless, it is both historically evident and accepted as legitimate for judges to make law, but in a 'special and more limited sense than the political branches of the government' (Lindell 1998: 268). Furthermore, critics of parliamentary government argue that such law making is not only legitimate in a liberal democracy, but often essential to it. With respect to the decision in Mabo, for example, Lindell (1998: 268) has observed that it 'did have the effect of breaking a difficult political and legislative logjam on the Aboriginal land rights question'. One of the majority judges in Wik, Gummow J. (1996) 141 ALR 129 at 226) also commented that there was a need to adjust ingrained habits of thought and understanding about the common law of Australia.

The second main issue arising from our discussion of Mabo and Wik concerns the use of land in Australia. Godden (1997b: 162) has suggested that Wik could have produced an examination of the traditional concepts of English land law. It could have led to greater discussion of the relationship of Australian people to land (Godden 1997b: 163). It could also have provided an opportunity to begin exploring new institutional forms for 'land management' in Australia. Such a debate could have encompassed the search for new institutions that established 'rights' to use land and which took greater account of co-existing and multiple interests in land. Such institutions would aim to reflect 'diversity rather than the priority accorded exclusive possession' (Godden 1997b: 163). The making of 'regional agreements' may signify a small step along this path of institutional change.

Finally, if active citizenship requires an understanding of cultural and legal difference, then citizens will also need a stronger knowledge of the historical origins and evolution of disputes. Certainly, revised understanding of the 'facts' of Australian history has been crucial in the two High Court judgements we have considered.

Review for Week 11 Before proceeding, you ought to review your understanding of this week's topic by:

(a) checking your responses to the Study Exercises against those supplied in the Study Guide, and

(b) reading again the documents for this week and completing the related Study Questions in the Workbook, for which there are no answers provided.

 

References

Andrews, J.R. 1978. The concept of statehood and the acquisition of territory in the nineteenth century. Law Quarterly Review 94: 408

Blainey, G. 1993. Mabo decision looked back through modern blinkers. Australian 10 November: 9.

Borbridge, R. 1997. Letter to the Editor: Cape deal is no shining example. Weekend Australian 8—9 February: 18.

Dorsett, S., 1997 'Clear and Plain Intention': Extinguishment of Native Title in Australia and Canada post-Wik' Griffith Law Review 6: 96

Godden, L. 1997a. Wik: Legal memory and history. Griffith Law Review 6: 122—43.

Godden, L. 1997b. Wik, feudalism, capitalism and the state: A revision of land law in Australia? Australian Journal of Property Law 5: 162—???.

Kempton, D. 1997. Only negotiation can resolve Wik. Australian 3 February: 8.

Lindell, G. 1998. Review article. UNSW Law Journal 21: 268—???.

Mabo v Queensland [No 2](1992) 175 CLR 1

Manne, R. 1997. Mabo: Why the right is wrong. Australian 8 April: 15.

Mason, A., 'The Rights of Indigenous Peoples in Lands once part of the Old Dominions of the Crown' (1997) 46 International and Comparative Law Quarterly 812

Nettheim, G., 1966 The Wik decision: yesterday, today and tomorrow. Australian 31 December: 11

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Reynolds, H. 1989. Dispossession. Sydney: Allen & Unwin.

Reynolds, H. 1993. Native title and pastoral leases. In M.A. Stephenson and S. Ratnapala eds. Mabo: A Judicial Revolution. St Lucia: University of Queensland Press, pp. 119—31.

Reynolds, H. 1995. Interview. ABC Lateline. 5 April. [Speaking about the Black Wars in Tasmania from 1824 to 1830.]

Reynolds, H. 1996a. Pastoral industry's debt to Aborigines. Courier Mail 3 February: 28.

Reynolds, H. 1996b. Aboriginal Sovereignty. Sydney: Allen & Unwin.

Reynolds, H., 1996. Pastoral industry's debt to Aborigines Australian 3 February: 28

Rush, P. 1997. An Altered Jurisdiction: Corporeal Traces of Law. 6 Griffith Law Review 144 at 158, citing Land Fund and Indigenous Land Corporation (ATSIC Amendment) Bill, second Reading Speech by the Hon Paul Keating, MP, Prime Minister, House of Representatives, February 1995, reported in (1996) 1 AILR 45, p. 46.

Saunders, C. ed. 1996. Courts of Final Jurisdiction: The Mason Court in Australia. Sydney: The Federation Press.

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Stanner, W.E.H. 1969. After the Dreaming: The 1968 Boyer Lectures. Sydney: Australian Broadcasting Commission.

Taylor, M. 1993. Bludgers in Grass Castles Chippendale: Resistance Books.

The way we civilise. [1880] 1988. Queenslander 1 May: 560. In W.R. Johnston ed. A Documentary History of Queensland. St Lucia: University of Queensland Press, pp. 95—6.

van Hattem, P. 1994. The implications of native title for the pastoral industry. In R. Bartlett and G. Meyers eds Native Title Legislation in Australia. Perth: Centre for Commercial and Resources Law, University of Western Australia, pp. 195—213.

Yu, P. 1997. A solution that gives rights to all. Australian 22 January: 11.

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