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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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In an e x t r a o r d i n a r y series of e x t r a - j u d i c i a l s t a t e m e n t s a f t e r the M a b o decree was handed down, C h i e f J u s t i c e M a s o n p a t r o n i s i n g l y d i s m i s s e d anyone d a r i n g to suggest t h a t i t was an excess, not to say an abuse, of j u d i c i a l a u t h o r i t y. Glossing over the difference between j u d i c i a l lawmaking t h a t i s necessary and incremental, on one hand, and g r a t u i t o u s, sweeping decrees on issues not before the court, on the other, he delivered a d i c t u m o f b r e a t h t a k i n g


“In so me ci rc umstan ces go ver nment s... pr efe r to l eave th e de ter mi nat ion of co ntr oversi a l que st ion s to th e cou r t s ra ther th an [ to]... th e pol i t ic a l pr ocess.

Mabo is an in ter es tin g ex ample ”. 6

In ot her, more ca ndid wor ds:

“C ommonwea lt h Par li ament sh oul d hav e re cog nis ed nat iv e t i tl e. It di dn’ t, so we di d”.

The pot ent ial cos t of th e adv ent ure to t a xpaye rs, so cia l h a r mony and th e nat io nal ec ono my was not co nsi der ed. In fo r m, Mabo is a ju dic ial de cis ion ; in su bst ance, i t is ra dic a l and poo rl y dr a f t ed l egi sla tio n.

In Canadian style, language was adjusted to remould popular opinion. The most speculative claimants instantly became “traditional owners”, and infallible “elders” and “leaders” were legion. Even the word “Aborigine” was suspected of political incorrectness, so the meaning of “indigenous” was altered, and limited to make it a synonym of “Aboriginal”, to the exclusion of many other people who acknowledge Australia as the land of their birth.

The pr inc ipal Mabo ju dgmen t s wer e he avi ly in fl uen ced by mode ls dr awn fr om ot her so cie t i es wit h di ff ere n t so cio -l ega l hi sto rie s, su ch as Can a d a and th e Uni te d St ate s. It is in ter es tin g to co mp are th e fo ll owi ng pas sag e in a re cent Hig h Cou r t ju dgmen t abo u t th e immun ity of adv oca tes fr om su its fo r ne gli ge nce. In re spo nse to a pl ea to fo ll ow Amer ic an pr ecedent s and a re cent ju dic ial bac kf lip in Eng lan d,

Chi ef Ju sti ce Glees on and Ju sti ce s Gummow, Hay ne and Hey don re tor ted :

“Whe re a de cis ion [ overse a s ] … is bas ed upo n th e ju dic ial pe rce p t i on of so cia l and ot her ch ange s sa i d to af fec t th e a d m i nis t r a tio n of ju sti ce in [ t h a t co untr y] th ere ca n be no a u t o m a t i c t r ans posi t i on of th e a r gumen t s fo und pe rsua siv e th ere to th e Aus t r a li an ju dic ial sy ste m”. 7 A very elast ic l aw Mabo itself did not establish any native title on mainland Australia, but it was a mysterious c h a r t e r for j u d i c i a l law-making. “Native t i t l e ” could mean anything from an occasional right of entry to s o m e t h i n g a k i n t o ownership. It all depended on native customs from place to place, a s asserted by c l a i m a n t s, t h e i r a n t h r o p o l o g i s t s a n d o t h e r well-disposed witnesses. According to the long and various d i s q u i s i t i o n s i n M a b o, the decisive c u s t o m s m i g h t be those of a “c lan or gr oup”, a “p eopl e”, a “n a t i ve pe opl e”, a “c ommuni ty”, a “f a m i l y, ban d or t r ibe ”, a “ t ri be or cl an”, a “ t ri be or ot her gr oup”, a “r el eva n t gr oup” or an “i ndi gen ous pe opl e”. Who, th en, was an “i ndi gen ous pe rso n”? Mabo st eer ed wel l cl ear of any de fin i t ion of whe re th a t ca teg ory begin s and ends.

Subsequent cases have done little to reduce vague and verbose rhetoric t o

reasonably predictable legal rules:

“ N a t i v e t i t l e i s n o t t r e a t e d b y t h e c o m m o n l a w a s a u n i t a r y concept. The heterogeneous laws and customs of Australia’s indigenous people … provide its content. It is a relationship between a community of indigenous people and the land, defined by reference to t h a t community’s t r a d i t i o n a l l a w s and customs”. 8 ( I t r u s t t h a t t h i s i s c l e a r. ) The concepts of continuous occupation and retention of traditional customs are so elastic that a trial judge’s fact-finding discretion is virtually unlimited.

If a “ t r i b e ”, “ c o m m u n i t y ” ( e t c ) seems to have petered out, continuity can be discovered by reference to outsiders supposedly “adopted” or “incorporated” into the original clan. There is scarcely any l i m i t to indulgent findings t h a t t h e adoption of European ways of living signifies a development, not s u b s t a n t i a l abandonment, of a pre-1788 lifestyle. After all, this is civil litigation, and it is only necessary to reach a plausible conclusion on the “balance of probabilities”.

The vaguer the law, the greater the power of the judges in charge of it.

The elasticity, not to say slipperiness, of M a b o concepts is well illustrated in the case of De Rose v. S o u t h Australia. The t r i a l j u d g e, O’Loughlin J, fo und th a t no re le vant connecti on to l and oc cupi ed by a ca t t l e st a t i on su rvi ved, as most

of the cl a i ma nts had never bother ed to vi si t th e land in que st ion :

“Many of the Aboriginal witnesses have claimed t h a t they have r e t a i n e d some a f f i n i t y w i t h the land. However, t h e i r actions belie t h e i r words.

Occasional hunting of kangaroos … s t a n d s out in isolation. No o t h e r physical or spiritual activity has taken place in the last twenty or so years.

–  –  –

The ri ght to negot iat e No country could afford to leave its land law in such disarray, so we received the Native T i t l e Act of 1993. I t made no a t t e m p t to define “native t i t l e ” or “Aborigine”, but it added to the confusion by inventing a “Right to Negotiate” to which the j u d i c i a l i m a g i n a t i o n s h a d not extended. Thenceforth the mere making of a claim over a tract of land, however vast, barred any development on i t w i t h o u t the consent of the c l a i m a n t s or the Native Title Tribunal, a new bureau with a vested interest in M a b o m e t a p h y s i c s. “ T h e r i g h t [ t o n e g o t i a t e ] i s a valuable right that may be exercised before the validity of an accepted claim has been determined”. 10 Rapidly, t h a t r i g h t became the m o s t i m p o r t a n t and valuable aspect of m a n y n a t i v e t i t l e c l a i m s. H o w e v e r d o u b t f u l a c l a i m m i g h t be, and whether or n o t i t was ever taken to t r i a l a n d proved, i t was a r i g h t t h a t could be very rewarding. While i t h a d no i m m e d i a t e v a l u e in a r e a s t h a t seemed devoid of commercial resources, it could serve the collateral purpose of keeping grievances in the headlines. In more prospective a r e a s would-be developers faced these alternatives: (1) Buy the claimants’ consent with cash or kind; (2) Venture into a slow, complex and costly legal maze; or (3) Capitulate.

In June, 2002 the chief executive of the rural lobby Agforce complained, with a good deal of evidence to support him: “T he momen t an ex plo r a t i on pe r m i t is gr ante d, al most imme d i a t el y a nat iv e t i tl e cl a i m is l odge d ov er th a t a r ea”, gi vi ng th e cla i ma nts “t he opp ort uni ty to ex tor t [ si c] th e min ing comp ani es”.11 Pau l Too hey, a jo urn alis t no rmall y very su ppor tiv e of Abo ri gin a l pol i t ic s,

quo ted, wit hout di sse nt, a l egal sp eci ali st in th e new and fe r t ile fi el d:

“L et’ s no t be co nfu sed. It ’s ju s t a ri ght to de lay and ca use humb ug. So th e ot her si de sa ys: ‘ [Damn ] 12 i t, l et’ s do a de a l and get on wit h i t. … You ju s t hav e to sc a t t er se ed to th e black fel la s’ ”. 13 The se edi ng pr ocess be came kn own as “c ashi ng out ”. Fe der a l Cou r t ju dges in cre ase d th e pr ess ure to “s ett le ” by st res si ng th e cost, delay and d i s r u p t i o n o f contested claims.

Nevertheless the Cape York Land Council, a s recently a s November, 2004, professed surprise and outrage a t reports t h a t i t h a d canvassed a discreet “cashing out” with BHP Limited to keep “cultural heritage guides” away from prospective mining areas. 14 The protest of purity followed the original doctrine of a leading native title exponent, Mick Dodson, to th e ef fe c t th a t mone y co uld no t be, and ne ver sh oul d be, a su bst itu te fo r “ t he opp ort uni ty to ex erc ise th e human ri ght s of fr eedom fr om di scr imin a t i on and equal ity befo re th e l aw”. 15 The re is a sc ene in Gi lbe r t and Sul l iva n’s ope re t t a The M i k ado whe re a fa vour is pur chas ed fr om Poo h-B a h, th e Empe ror ’s Min ist er fo r Ev ery t h i ng El se. The emol umen t is poc ket ed, al bei t wit h a l oft y ex pres si on of di sgus t: “A noth er in sul t, and, I fe ar, a smal l on e!”. The bl andi shme nts of “c ashi ng out ” hav e al so pr oved ir re sis tib le.

So me pr oduc t s of th e R i g h t to Neg oti ate hav e be en most a t trac t i ve, whe ther or no t th e re ci pie n t ol ig arch s di s t r ibu ted th e mone y fa irl y, or sp ent i t wis el y. A fe w exampl es m u s t su ffi ce. In Apr il, 20 03 a de velope r pai d $1.5 mil li on to two ur bani sed “t ri bes ” fo r aba ndon ing cl a i ms over th e Gold Coa st’ s So uthpo r t Spi t. 16 In a more re m a r k a ble t r ans acti on, th e Ce ntur y Zi nc min e in no rth- wes t Que ens lan d was abl e to pr oceed on ly af ter pr omise s by th e co mp any and th e St ate go ver nment to t r ans fer l and, ca sh and be nef i t s to t a l li ng $9 0 mil li on, in cl udin g $5 00, 000 fo r a “wo men’ s bus in ess ” ce ntr e. In t h e N o r t h e r n T e r r i t o r y t h e Z a p o p a n gold m i n i n g c o m p a n y p u r c h a s e d i t s f r e e d o m f r o m a n a t i v e t i t l e c l a i m w i t h a t r a n s f e r of freehold and other material benefits. Less successful was a group that tried to halt the construction of a major gas pipeline in Queensland, only to have their case for an injunction robustly dismissed by Drummond J. 17

–  –  –

Confus ion confounded The h i s t o r i a n M a r c Bloch h a s described history a s occasional convulsions followed by long, slow developments. B u t in t h i s case the next legal convulsion was not long in coming. In M a b o Brennan J indicated that Crown leases were safe from native t i t l e c l a i m s, and in f r a m i n g i t s Native T i t l e Act the K e a t i n g Government relied on the oracle. But in the dying days of December, 1996, despite Brennan’s refusal to change his mind, i t was revealed t h a t C r o w n leases were vulnerable after all. 19 Wor se, th ere was no ge ner a l ru le. If a de fen dant re fus ed to su rre nder or “c a s h out ”, th e re sul t in every si ngl e ca se de pend ed on i t s own fa cts, th e te r m s of th e par t i cul a r l ease, and a ju dge’ s vi ew of th em. It was l egal unc er t a i nty on st il ts.

The “Ten Point Plan” Fur the r l egi sla tio n was ne ede d to so r t out th e ju dic ial ly cr a f t ed co nfu sio n. The ne w Coa li tio n go ver nment pr oduc ed a “T en Poi nt Pl an”. But pol i t ic a l pl ans a r e no t l aw. In 1997 the Senate made 217 amendments to the Bill. The government accepted half of them, but that was not enough to secure its passage. It was not until July, 1998 t h a t the independent Senator H a r r a d i n e “blinked”, and a modified version of th e Te n Poi nt Pl an be came l aw, as th e Native T i t l e Amendment Act 1998. The superstructure erected on M a b o and t h e 1 9 9 3 A c t b y f e d e r a l c o u r t s a n d t h e N a t i v e T i t l e T r i b u n a l w a s already so obscure t h a t t h e amendments ran to 350 pages!

But they did slow the traffic. Claims became harder to lodge, because more supporting information was required. Grants of leases made in 1994-1996, in the Mabo-induced belief that Crown leases extinguished native title, were validated.

T h e R i g h t t o N e g o t i a t e no longer applied to claims over town and city a r e a s, where some of the silliest, headline-seeking claims had been made. “Low impact” exploration for minerals could be exempted. It was d e c l a r e d t h a t c o m m e r c i a l, residential and community purpose leases, and agricultural and pastoral leases conferring exclusive possession, extinguished any native t i t l e t h a t would otherwise affect them. N a t i v e t i t l e w a s subjected to g e n e r a l r i g h t s to w a t e r, fish resources and a i r s p a c e. “Scheduled i n t e r e s t s ” notified by S t a t e s a n d Territories as exclusive possession tenures were given protection. But a six-year deadline for new claims did not survive the Senate.

Compulsory acquisitions remained subject to the Right to Negotiate, while r i g h t s to c o m p e n s a t i o n, s t a t u t o r y access r i g h t s, and a r g u m e n t s t h a t c e r t a i n leases do not confer exclusive possession, still leave plenty of room for litigation, a s t h e p l e t h o r a o f subsequent law reports indicates. The “ e l a s t i c i t y ” of M a b o metaphysics, exemplified above, should not be underestimated. The immunity of some “scheduled i n t e r e s t s ” may also be open to question. Settlements a n d “cashing out” were f o r m a l i s e d in provisions for “Indigenous Land Use Agreements”. In certain cases the States were permitted to make arrangements in lieu of the R i g h t to Negotiate, but l i t t l e use h a s been made of those provisions.

In a comic sequel to the 1998 Act, a gentleman named N u l y a r i m m a commanded the ACT authorities to arrest the Prime Minister, the Deputy Prime M i n i s t e r a n d two other members of federal P a r l i a m e n t, and to charge t h e m with genocide for supporting changes to the Native T i t l e Act 1993. 20 When no warrants were forthcoming, the pursuer asked the ACT Supreme Court to order the police to a c t. After a very long and polite j u d g m e n t the judge found t h e proceedings to be “essentially misconceived”.

M r N u l y a r i m m a then appealed to three judges of the Federal Court – Wilcox, W h i t l a m and Merkel JJ. They reluctantly d i s m i s s e d the appeal; t h e

–  –  –

Putting Mabo into practice The f i r s t f e w t i t l e s did not have to be proved. As we have seen, c o m m e r c i a l considerations are one inducement to “settle”. Another is the t e m p t a t i o n f o r governments to avoid controversy and win modish Brownie points by conceding claims over Crown l a n d. P o l i t i c i a n s a r e e v e r ready to spend public money f o r political advantage, however fleeting, so why not public l a n d s ? P o l i t i c a l l y a n d economically this process is easiest where no prospect of economic return seems to exist. Of course that can change in future, but politicians’ views of the future a r e u s u a l l y m y o p i c. A t r a c t o f Crown l a n d m a y s e e m a s m a l l price to pay f o r peace and the approval of native title enthusiasts.

In December, 1997 the Federal Court rubber-stamped an agreement between the Queensland government and t h i r t e e n Aboriginal groups w i t h respect t o 110,000 hectares a t Hopevale, on Cape York. This was the f i r s t native t i t l e a g r e e m e n t i n A u s t r a l i a, b u t i t i n v o l v e d a d i s t i n c t i o n w i t h o u t much difference, because the land was already in trust for Aborigines under State law. There were exemptions for existing mining operations, and mineral rights remained in the Crown. In mid-2002 Noel Pearson’s brother, Gerhard, was s t i l l unsure of t h e

precise arrangements at Hopevale:

“T he l awyer s and go ver nment wer e so ke en on ge t t i ng an agr eeme n t and su bse quen t pr omoti on [ i.e. pol i t ic a l kud os] th a t th ey pus hed pe opl e in to so me t h i ng th a t th e commu nit y is [ sti ll ] t r yi ng to unr ave l”.

The next native t i t l e also resulted from a consent order. I t covered 12 hectares of Crown land at Crescent Head, on the north coast of New South Wales.

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