Australian Government Solicitor No. 3

On the 25th anniversary of the Mabo decision

'We are surrounded by the tales that shaped, and shape, this country.'
Ambelin Kwaymullina¹

 

Robert Orr PSM QC
Currently Special Counsel at AGS, Robert was previously Chief General Counsel. He was awarded a Public Service Medal in 1994 and appointed a Commonwealth QC in 2000. His expertise covers public law, including constitutional law, administrative law, legal policy development, decision-making and statutory interpretation, native title and Indigenous legal issues, and land and environmental law.

 

This article is based on a talk I gave at the offices of the Attorney-General's Department in Canberra on 5 June 2017.

I thought it particularly important to begin the talk by acknowledging the traditional owners of the land on which those offices sit. They are quite close to Lake Burley Griffin, on the Molonglo River, and the Indigenous people of the region used this river as a primary resource corridor. Ceremonies beside the river were conducted as late as the 1860s, and at times included feasting on Bogong moths which migrated from Queensland and western New South Wales to spend the summer in the mountains near Canberra.

In this article I briefly do 4 things: first, outline my involvement in native title issues; second, provide some important historical context; and then, third, note key features of the Mabo [No.2]² decision in 1992, the original Native Title Act passed in 1993, the Wik³ decision in 1996, and the Native Title Amendment Act passed in 1998. I conclude by discussing some general themes arising from these events.

My involvement

I am not an Indigenous person, and occupy a privileged position in Australian society. I do not think that this means that I should not speak or write about native title. But I do think that this is a subject which particularly and deeply affects Indigenous people, and that I, along with other non-Indigenous Australians, need to make efforts to seek out, listen to, respect and take account of Indigenous voices on this issue, of which there are many.⁴ The native title events which I discuss enabled me to hear first-hand many such voices, which was a very moving experience.

I do write from the perspective of a government lawyer. I came to this after studying at the University of New South Wales and working for a commercial law firm. I have been a government lawyer with AGS for about 35 years, in Sydney and then in Canberra. During this time I also worked for 2 years for a Papua New Guinea provincial government where customary law is an accepted part of the legal system.

I think government lawyers play very important roles. One is to assist to maintain the basic machinery of our government. A second is to assist in the development of policies, the implementation of those policies, most importantly in laws, but also in decisions, agreements and other forms, and the defence of those policies and their implementation. A third role is to assist the government itself to comply with the law.

I was involved as a government lawyer in all these roles in relation to native title. In particular, I was a member of the team which developed the government's response to the Mabo [No.2] decision, most significantly the Native Title Act 1993, under Prime Minister Paul Keating and Attorney-General Michael Lavarch.⁵ Also, I was a member of the team which developed the response to the Wik decision, in particular the Native Title Amendment Act 1998, under Prime Minister John Howard and Attorney-General Daryl Williams.⁶

Historical context

To understand the importance of these events it is useful to note 4 aspects of history before the settlement of Australia by the British.

First, Aboriginal people lived here for tens of thousands of years before the Europeans arrived. As the High Court confirmed in Mabo [No.2], those Indigenous Australians had subtle and elaborate laws to regulate their communities.

Second, 1492 is an important date in European history, particularly in Spain. It is representative of the age of exploration, when Christopher Columbus set out to find other worlds.

But third, this and other events of that year had a darker side. For some periods in the middle ages, Christians, Jews and Muslims lived together in Spain in reasonably tolerant communities. But 1492 saw the expulsion of Jews and Muslims, unless they converted to Christianity. This was what we would now see as a terrible religious persecution, but at this time there was also emerging 'blood purity' laws which stigmatised groups on the basis not just of their beliefs, but because of an alleged inherited status which could not be eradicated. This was the beginning of modern racism, defined by George Fredrickson as 'when one ethnic group or historical collectivity dominates, excludes or seeks to eliminate another on the basis of differences that it believes are hereditary and unalterable.' This belief was one factor which led to slavery and the position of African-Americans in the USA, to anti-semitism and the Holocaust in Europe, and to colonialism and settler societies, including in Australia.⁷

Fourth, the common law of England developed to deal with what happened when new territories were acquired. AGS lawyer Gavin Loughton is an expert in this area, and based on his summary and the discussion in Mabo [No.2], the 'colonies rule':

• divided new territories into settled lands, sometimes called empty lands which involved the concept of terra nullius, and lands acquired by conquest or ceded under treaties
• provided that in 'settled lands', the English settlers took English law with them to their new home, and all land there vested in the King, since there were no other laws or proprietors
• in contrast, in conquered or ceded lands, the old laws of those lands remained, as did rights under those laws, unless and until the King changed them.⁸

These 4 historical streams were all relevant to the settlement of Australia. Great Britain acquired sovereignty over New South Wales from 1788, and although legal issues were not at the forefront of the settlers' minds, though practical interactions with Indigenous people were, the legal effect of what occurred then was addressed over time. It was held that the Australian colonies were settled, not conquered or ceded, lands, that English law therefore operated, and the land was vested in the King.⁹ Local Indigenous laws and ownership rights under those laws were not recognised.

The practical reality was that Indigenous laws continued to govern Indigenous communities. It was also that, as Deane and Gaudron JJ noted in Mabo [No.2], there was a '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.'¹⁰

The laws which were developed over the 19th century and the first half of the 20th century in Australia, including the Constitution, reflected the racism central to most western thought and the colonial experience at that time. There were 2 mentions of the Aboriginal 'race' in the Constitution, both dismissive.¹¹ Early laws passed under it included the Commonwealth Franchise Act 1902 which provided in s 4 that 'no Aboriginal native of Australia … shall be entitled to have his name placed on an Electoral Roll,' subject to s 41 of the Constitution. No matter what an Aboriginal person believed, or their education, occupation or wealth, this prohibition applied, because of an alleged inherited status which could not be eradicated.¹²

Principally after World War II the legal position began to change, with the 1967 referendum to amend the Constitution, the International Convention on the Elimination of All Forms of Racial Discrimination implemented in the Racial Discrimination Act 1975,¹³ and the first statutory land rights regimes.

Mabo [No.2] and the Native Title Act

Mabo [No.2]

Yet despite these developments an underlying principle of Australian law remained that any rights of Indigenous people under their laws were not recognised. However, proceedings were commenced in 1982 in the High Court by Eddie Mabo and others on behalf of the Meriam people who claimed rights to the Murray Islands in the Torres Strait, based on their customary law. This was initially referred to the Queensland Supreme Court for finding of facts. The claim also survived the Queensland Coast Islands Declaratory Act 1985 (Qld) which purported retrospectively to abolish all such rights and interests as the Murray Islanders may have had before its enactment; in the first Mabo v Queensland,¹⁴ the High Court held that this Act was inconsistent with the Racial Discrimination Act and invalid under s 109 of the Constitution.

The substantive claim was decided in Mabo [No.2], handed down on 3 June 1992, 25 years ago. This directly reconsidered the accepted common law position that Australia was a settled territory, with the effect that English laws were immediately in force, and no other laws were recognised. The High Court rejected this position by 6 Justices to 1, with leading judgments by Brennan J and Deane and Gaudron JJ. In doing so, the judgments had regard to:

• international law developments, in particular the holding that inhabited land was not terra nullius¹⁵ and the Racial Discrimination Convention
• the law in other countries, especially Canada, former African colonies, and New Zealand, where there was much greater respect for Indigenous land rights
• anthropology, which demonstrated that Indigenous peoples had subtle and elaborate systems of laws, as shown by evidence taken by Moynihan J of the Queensland Supreme Court concerning the Murray Islands
• the history of Australia, in particular that dispossession had in fact not occurred by the transfer of beneficial ownership when sovereignty was acquired by Britain, but by the subsequent recurrent exercise of power to exclude Indigenous people.

The judgments indicate a concern for remedying the law's role in the discrimination and dispossession which had taken place. Jeremy Webber refers to this as the 'jurisprudence of regret',¹⁶ regret that the past has shaped our society in a way that we now take to be wrong, and that in this light legal doctrines created by the courts which enabled or rationalised these events, despite their long acceptance, should be removed. As Brennan J stated: 'The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged doctrine of terra nullius and to persist in characterising the Indigenous inhabitants of the Australian colonies as people too low in the scale of social organization to be acknowledged as possessing rights and interests in land.'¹⁷

Therefore the majority in Mabo [No.2] decided that native title rights based in Indigenous law survived the acquisition of sovereignty by the British and were recognised by the common law. The Court held that such rights had been extinguished by specific governmental acts, such as the grant of freehold and leases. Subject to such acts, the Meriam people were held to be entitled 'as against the whole world to the possession, occupation, use and enjoyment of the lands of the Murray Islands.'¹⁸

Native Title Act 1993

The decision was significant, controversial and left many issues concerning native title uncertain. The government therefore began considering its response, including a possible Native Title Act. There was clearly a need for extensive consultation. There were meetings with State and Territory governments, which traditionally had responsibility for land management. There were meetings with Indigenous leaders, including Lowitja (Lois) O'Donoghue, Noel Pearson, Mick Dodson, Patrick Dodson, Marcia Langton, David Ross, Darryl Pearce, Darryl Cronin and Peter Yu; it was a privilege to deal with these articulate, committed and grounded advocates. And there were many others interested: miners, graziers and farmers, fishers, environmentalists, local councils, aid agencies, lawyers, academics; it felt like everyone.

The Bill which was developed accepted the decision in Mabo [No.2], and followed in particular the judgment of Brennan J, with whom Mason CJ and McHugh J agreed, for its definition of native title and the principles of extinguishment. It included a Preamble, along with key provisions for the recognition and protection of native title. It provided for the validation of past acts possibly rendered invalid by the Racial Discrimination Act or other laws before it was known native title existed, a concern stemming from the reasoning in the first Mabo decision. It allowed future governmental acts to affect native title if those acts could affect freehold land, with a special 'right to negotiate' for some mining and compulsory land acquisitions. The Bill provided for a claims process with an emphasis on mediation, registers and a National Indigenous Land Fund. It was criticised from many sides; but Paul Keating called it the most broadly consulted on and negotiated Bill that had been through the Parliament.

The Bill was introduced into the Parliament on 16 November 1993, and was debated in the Senate, which the government did not control, from 14–21 December. Gareth Evans masterfully led the debate for the government there, and at the time, this was the longest Senate debate on record. The Bill with 120 amendments passed the Senate with Democrat and Greens (WA) support, by a 34–30 vote.

The passage of the Bill through the Senate late at night after a marathon sitting was very emotional. Many Indigenous representatives were present, and Parliament House was full of Bogong moths, as if in memory of the generations of Indigenous people who had feasted on them and lived in the area around Canberra. The House agreed to the Senate amendments, the High Court rejected a challenge by Western Australia to the Native Title Act, and upheld a challenge to Western Australia's alternative legislation.¹⁹

Wik

But given the nature of these changes, there were always going to be further developments. The Howard government was elected on 2 March 1996, and on Christmas Eve eve of that year the High Court delivered its decision in Wik, which held by 4 Justices to 3 that Queensland pastoral leases did not necessarily extinguish all native title in the areas involved. This meant that native title rights could continue to exist on such pastoral leases, and therefore in a greater area of Australia than the discussion in Mabo [No.2] had suggested.

Native Title Amendment Act 1998

This decision and the development of amendments to the Native Title Act to deal with it were matters of further significant controversy. The Howard government applied principles and processes which reflected their policy approach to the task. The public servants and lawyers involved implemented these within constitutional and legal principles, the logic of Mabo [No.2] and the structure of the Native Title Act. The Bill addressed key issues arising from the Wik decision and of concern to the government, in particular providing for the confirmation of some historical extinguishment and the position of current pastoral lessees, but the Preamble, the protection provisions and basic framework of the Act remained, and non-contentious improvements were made in relation to Indigenous Land Use Agreements (ILUAs) and the ability to claim native title over land subject to historical extinguishment.

The Bill was introduced on 4 September 1997; its passage was even more tortuous than the original Act; it became a possible trigger for a double dissolution election; it went to the Senate 3 times before it finally passed by 35–33 votes, with the support of Brian Harradine. Nick Minchin skillfully led the debate in the Senate for the Government, and this was and remains the longest Senate debate on record.

There was no High Court challenge to the amendments; however, in an indication of the growing relevance of international law, a complaint was made to the United Nations Committee responsible for the Racial Discrimination Convention, which was upheld. However, the amendments have generally remained in place, and whilst there are a range of views about the Act,²⁰ this has provided a framework for claims of native tile, regulating government acts affecting native title and agreements with native title holders.

Issues

This was a major, controversial change

It is interesting re-reading the Mabo [No.2] decision to note that at some points Brennan J seeks to understate the change involved, no doubt to bolster his position that it was an appropriate development. But this was a change, however framed, which went to the fundamental nature of Australian law. It recognised a new source of law, the traditional rights and interests of Aboriginal people. It adjusted the legal effect of what happened at European settlement.

It also had a major practical effect on contemporary land ownership and management, and because of this, was from the beginning highly controversial. I was present at many meetings with many representatives which were usually civil, but revealed the deep impact of native title on Indigenous and non-Indigenous groups. Travelling with Michael Lavarch to Western Australia and John Howard to a public meeting outside the Stockman's Hall of Fame in Longreach, it was clear that the general community was very engaged. This level of change and its controversial nature was a challenge for Australian governmental processes, and demonstrated to me the importance of compliance with basic constitutional and legal principles and the moderating positions of community leaders, politicians and public servants in these processes.

But a change which is now generally accepted

Despite the controversial beginnings, the Mabo [No.2] decision and the native title framework which emerged are now broadly accepted. In my view, the fact that the change was made by both judicial and legislative processes, and that there were legislative processes under different governments, was a key factor in consolidating these developments.

Native title determinations are now routinely made by the Federal Court, and are generally seen as a basis for celebration. Mining companies, many of whom were ferocious in their criticism of the Mabo [No.2] decision and the Native Title Act, have developed strong relations with Indigenous people in Australia, and routinely make ILUAs with native title holders. Australian property law now clearly involves 2 legal regimes from 2 different cultures. Brendan Edgeworth has written of the 'genuinely blended system' which has emerged and the 'hybrid character' which 'marks out its uniqueness: it is no longer seen simply as a transplanted model of English law, but a truly new form of national land law.'²¹

In which Aboriginal people participated and benefitted

The Mabo [No.2] and Wik decisions were initiated by Indigenous plaintiffs. Indigenous representatives played a very significant role as negotiators of the original Native Title Act, and a key though more limited role in the Amendment Act. And the courts, government and the Parliament listened to them.

The system which was implemented gave native title claimants and owners significant rights. The position now is that statutory 'land rights' land and Aboriginal reserves make up about 13% of Australia; exclusive possession native title about 10%; non-exclusive possession native title about 11%; and with registered claims over another nearly 40%. This is a total of about 72% of Australia where some level of Indigenous land rights does or may exist.²² Over this land there are a range of registered ILUAs and similar agreements with miners and others which bring significant benefits to the Indigenous people.

But which reveals the limits of law

I have focused on the legal changes brought about by the recognition of native title. Important as it is, this recognition is limited. Native title claims are challenging and difficult processes. Native title has been extinguished in many places, especially in urban and suburban areas. And it is important to ask whether the recognition of native title did change the plight of Aboriginal people for the better, or 'did it merely reinscribe in another form a longstanding and negative pattern to their historical experience.'²³ Despite the recognition of native title, other factors have left Indigenous Australians disproportionately affected by criminal law processes, and in a disadvantaged socio-economic position.

Conclusion

I do not want to oversimplify the complex legal history of Australia, but I think it is clear that the law played a significant role in the racially discriminatory treatment of Indigenous Australians from 1788, including in the foundational principle that from settlement their laws and rights under them were not recognised.

The Mabo [No.2] decision, and the Native Title Act, have revised this legal principle and recognised and protected the native title rights of Australia's Indigenous people. These developments have importantly involved an acknowledgment of regret for this aspect of our history and the law's role in it, and transformed Indigenous Australians, who had to a large extent become outsiders in our society, into the holders of extensive property rights and significant legal and political voices.²⁴

¹ 'Living together in country: creation, terra nullius and "the trouble with tradition" ' in Simon Young, The trouble with tradition (2008), p xvi.

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

³Wik Peoples v Queensland (1996) 187 CLR 1.

⁴ In the talk, I read out the poem 'Urbanised reeboks' by Lisa Bellear, written in 1996.

⁵ There were a wide range of others involved in this task, and I mention in particular: from the Attorney-General's Department (AGD) Peter Jeffery, who went on to provide outstanding advice in this area over many years, Kym Duggan, Helga Johnsen, Deborah Nance, Grahame Tanna, Lachlan Kennedy, and Janine Ward; from the Office of Parliamentary Counsel (OPC) Kerry Jones and Peter Quiggin; Sandy Hollway, who led the team, Dennis Richardson, Michael Dillon, Mark Cunliffe, Colin Walters and David Hanna from the Department of the Prime Minister and Cabinet (PM&C).

⁶ This included many of those involved in the earlier process and others, in particular Peter Jeffery, Chris Horan, Sonali Rajanayagam and Grahame Tanna from AGD; Kerry Jones and Peter Quiggin from OPC; Ken Matthews and Philippa Horner, who led the team, Sandra Ellims, Julie Yeend and Anne McDermott from PM&C.

⁷ George Fredrickson, Racism: a short history (2002), pp 31–34 and 170.

⁸ Gavin Loughton, The extension of English law following conquest and settlement: the origins of the colonies rule (2002), pp 1–2; Mabo [No.2], see esp 25–38, Brennan J.

⁹Attorney-General (NSW) v Brown (1847) 1 Legge 312; Cooper v Stuart (1889) 14 App Cas 286; NSW v Commonwealth (1975) 135 CLR 337 (the Seas and Submerged Lands Act case); Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (the Gove Land Rights case).

¹⁰ At 104.

¹¹ Sections 51(xxvi), amended in 1967, and 127, removed in 1967. Section 25 also still refers to 'persons of any race'.

¹² Former senior AGS lawyer John McCorquodale has collected and written on these types of laws, see Aborigines and the law: a digest (1987).

¹³ Upheld by the High Court in Koowarta v Bjelke-Petersen (1982) 153 CLR 168.

¹⁴ (1988) 166 CLR 186.

¹⁵Advisory Opinion on Western Sahara [1975] ICJR 12.

¹⁶ Jeremy Webber, 'The jurisprudence of regret: the search for standards of justice in Mabo' (1995) 17(5) Sydney Law Review 5.

¹⁷Mabo [No.2] at 58.

¹⁸Mabo [No.2] at 217.

¹⁹Western Australia v Commonwealth (1995) 183 CLR 373 (the Native Title Act case).

²⁰ The Australian Law Reform Commission has proposed changes in its report Connection to country: review of the Native Title Act 1993 (ALRC Report 126, 2015).

²¹ Brendan Edgeworth, 'The Mabo "vibe" and its many resonances in Australian property law', in Sean Brennan, Megan Davis, Brendan Edgeworth and Leon Terrill (eds), Native title from Mabo to Akiba (2015), p 75, at p 91.

²² Jon Altman and Francis Markham, 'Burgeoning Indigenous land ownership', in Native title from Mabo to Akiba (2015), p 126, at p 135.

²³ PG McHugh, Aboriginal title: the modern jurisprudence of tribal land rights (2011), p 339.

²⁴ See generally Jeremy Webber, footnote 17; Brendan Edgeworth, footnote 23, esp p 96.

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