Aboriginal Law Bulletin
by Richard Bartlett
The graphic accompanying this article is part of an advertising campaign by the mining industry in Western Australia attacking the High Court decision in Mabo. It was carried out concurrently with the State Government's campaign in support of its native title legislation. Both campaigns are disguised in the language of equality and rest on the presumption that no-one should be recognised as having any rights to land because of a relationship to land prior to British sovereignty. Both are fundamentally racist and seek to eliminate the property rights of one racial group, Aboriginal people. This article seeks to explain why the Land (Titles and Traditional Usage) Act 1993 (WA) is a violation of the Racial Discrimination Act 1975 (Cth).
Native title is the common law recognition of the relationship of Aboriginal people to their traditional land. Its status is equal to and not inferior to the rights of other parties. It will sustain an action of trespass or ejectment against a trespasser on native title land.
Jurisdictions such as Western Australia that seek to replace native title with a statutory right of inferior status emphasise its especial vulnerability at common law to extinguishment by the Crown. And indeed, apart from the Racial Discrimination Act (hereafter the 'RDA'), it may be extinguished without consideration or compensation. The vulnerability of native title is founded in the pragmatic compromise first declared by the United States Supreme Court in Johnson v McIntosh. It is a pragmatism that is fundamentally 'racist' and distinguishes between the rights of Aboriginal people and the rights of those that came after. The compromise was founded on the need to give effect to the facts of settlement. The especial vulnerability of native title at common law is the essence of the racist compromise that legitimised the dispossession of Aboriginal people by European settlers.
In Canada and the United States the compromise was moderated by the denial of jurisdiction to the Provinces and States to extinguish native title and the institution in policy of the requirement of the consent of the Aboriginal people to any extinguishment. In Canada the compromise was eventually wholly overturned in 1982 when surviving Aboriginal rights were entrenched in the Constitution. Native title in Canada is now accorded greater protection than other property interests.
In Australia the compromise, and its racist diminishment of native title, remained in place until 1975. The RDA of that year overturned the racist element in the compromise. Native title is now accorded the same protection as the rights of others from extinguishment and impairment. Brennan J thus declared a rationale of extending 'full respect' to the rights and interests of the indigenous inhabitants of a settled colony. Native title is afforded such respect only when protected by the RDA. It is the RDA that demands, as applied in Mabo No. 1, that the common law recognition of Aboriginal people's traditional relationship to the land and any statutory regime afford 'equality before the law'; that is, 'full respect'.
Any assessment of a statutory regime respecting or replacing native title must consider if the traditional relationship to land of Aboriginal people is accorded equal treatment and status to the relationship of other racial groups. It is suggested that the standard treatment accorded other interests is, in accord with the fundamental common law respect for existing property rights, to fully respect their rights according to their tenor except in exceptional circumstances. The Western Australian legislation offers contempt, not respect, for native title.
Western Australia is the principal jurisdiction in the common law world which had made no provision for rights of Aboriginal people to their traditional land. Mabo undoubtedly has the greatest impact on Western Australia, but that is because successive State governments have failed to provide any meaningful rights to land. It is with the intent to continue to deny rights to land that the State Government has rejected the Mabo decision. As early as October 1992 Bill Hassell urged its rejection in so far as it provided "a basis for judicially generated land rights". That position was soon afterward endorsed by Richard Court. The Land (Titles and Traditional Usage) Act maintains that position and seeks to repeal Mabo.
The Government of Western Australia has declared in its advertisements that its proposed legislation is a "fair solution to Mabo for all Western Australians". Indeed, it has suggested that the legislation has been drafted in the true spirit of the High Court decision". The declaration is a hoax. The main effect of the legislation is to extinguish, subordinate and diminish Aboriginal rights to land. It does not comply with the RDA'.
The basis for that conclusion is not to be found in the racist advertisements of the Government or the mining industry, but in the text and language of the legislation. It is a complex piece of legislation which upon examination is revealed to be a sham. The following is a review of the legislation.
The Act provides for the replacement of native title at common law with 'rights of traditional usage' of subordinate and inferior status. The Act expressly negates equivalence to native fide and renders such rights subject to the regime declared by the Act. The cumulative effect of the regime is to repeal Mabo in the sense of denying any substance to the rights of Aboriginal people with respect to their traditional relationship to the land. The relationship is made subordinate to the rights and interests of others, denied the rights of protection extended to others, and diminished as to the content of the statutory 'rights of traditional usage'. The especial vulnerability of the traditional relationship to the land of Aboriginal people is affirmed rather than denied. The Crown's ability to grant and take any action with respect to land to which Aboriginal people maintain a traditional relationship, without regard to the interests of the Aboriginal community, is essentially maintained.
The statutory rights of traditional usage are expressly made subject to and such as not to 'restrict or impair the exercise of the rights of all other title-holders, whether proprietary or not. Upon the granting of any such interest by the Crown it overrides the rights of traditional usage.
The statutory rights of traditional usage may be overridden by grants under the Mining Act 1978 (WA), Petroleum Act 1967 (WA), Petroleum (Submerged Lands) Act 1982 (WA), Petroleum Pipelines Act 1969 (WA), Land Act 1936 (WA) and the Pearling Act 1990 (WA). The protection extended to rights of traditional usage are inferior. The regime does not respect the traditional relationship of Aboriginal people to their land according to its tenor.
The most obvious examples are afforded by the Mining Act and the Land Act. Under both Acts the Minister is required to consult with an Aboriginal group which is considered to have a bona fide claim to rights of traditional usage. After consultation the Minister makes a non-reviewable recommendation to the Minister of Mines or Lands. But the Minister is not bound to accept the recommendation and may grant or refuse the application irrespective of any interference with rights of traditional usage. The Minister of Mines or Lands can 'disapply even these procedures with respect to a particular area or application. Under both Acts grants will override the rights of traditional usage.
By contrast, holders of other interests are accorded much greater protection. For example, freehold farmers in the South West of the State are accorded a veto over mineral development, even though at common law according to the terms of their interest where minerals are reserved to the Crown the Crown has a right to mine those lands.
The contrast to the Land Act is more dynamic. No other holders of interests in land other than holders of rights of traditional usage are subject to a grant being made under the Land Act which overrides and is inconsistent with that interest.
The statutory 'rights' of traditional usage are essentially unenforceable. The Crown may issue any disposition, without resumption, irrespective of the 'rights'. Section 24 makes explicit the consequence of those provisions. Neither the State, statutory body nor State office may be restrained from any grant or taking any action that may result in the extinguishment, suspension or impairment of the 'rights'. Nor does the existence of any court proceedings afford a bar. The 'rights' do not empower the Aboriginal people to engage in any particular use of the land, they merely confer a right of compensation.
At common law the content of native title is determined by the traditional relationship of Aboriginal people to land. It is likely to include rights to use the land and waters for traditional sustenance for hunting, gathering and fishing and for ceremonial purposes. At common law native title might be extinguished only by legislation which revealed a 'dear and plain intention to do so.
The Act entirely removes the common law protection appropriate to native title rights. Section 17 states that general laws apply to 'rights' of traditional usage unless there is express provision to the contrary. The requirement of a 'clear and plain intention' to extinguish is replaced by a presumption of extinguishment. In the result the general laws respecting hunting, fishing and foraging rights in Western Australia will limit if not nullify traditional rights without compensation.
The Act provides that all Crown dispositions issued from the date the Racial Discrimination Act came into effect, October 31, 1975, until the WA Act comes into effect, have effect according to their tenor. They are not invalid on account of or affected by, or subject to native title. They override, and, to the extent necessary, extinguish or impair native title. The provision distinguishes between native title which is denied and all other interests, whether proprietary or not, which are given effect according to their tenor. Holders of native title are accorded merely a claim for compensation under section 28.
No compensation is payable for:
(1) The extinguishment or impairment of native title prior to October 31 1975.
(2) The general extinguishment of any surviving native title at the time the Act comes into effect.
(3) The negation of native title by the combined effect of the substitution of 'rights of traditional usage' and the application of general laws.
Compensation is payable for:
(1) Extinguishment or impairment of native title from October 31 1975 to the commencement of the Bill.
(2) Extinguishment, impairment or suspension of 'rights' of traditional usage by legislative action or executive action after the commencement of the Act.
The Act provides for principles of compensation which contemplate an inferior amount of compensation to that provided by the Public Works Act 1902 (WA). That Act provides expressly for the need to compensate for special circumstances, such as the Aboriginal attachment to land. That requirement is deleted from the Land (Titles and Traditional Usage) Act.
The Act declares a limitation period of 18 months for all claims for compensation. The application of limitation periods at all to a uniquely disadvantaged group is questionable. The application of an 18 month period is unfair, especially so when applied to all Crown dispositions and actions from 1975 to the commencement of the Act. The State of Victoria enacted a 15 year limitation period.
The Act imposes a more onerous burden of proof upon claimants than that imposed at common law. In particular it reverses the onus of proof with respect to showing extinguishment. At common law that onus is upon the State.
The procedure following submission of a claim to the Minister contemplates 'negotiation' to settle the issues with respect to which the claimants bear the statutory onus of proof and the amount and form of compensation. But the bargaining position afforded by the Act is merely that of the right to limited compensation and the significance of 'negotiation is correspondingly diminished.
At common law and before the RDA the traditional relationship of Aboriginal people to the land was diminished, in the interests of pragmatism, to legitimise the settlement of Aboriginal lands throughout the common law world. The principal aspect of the diminishment was the essential vulnerability of native title to extinguishment without any regard to the standards providing for consideration, protection and compensation accorded non-Aboriginal interests. Sections 23 and 26 of the WA Act seek to reassert the especial vulnerability of native title and apply it to 'rights' of traditional usage. Indeed the Act seeks to increase the vulnerability of native title. Section 26 empowers the Minister to extinguish or suspend 'rights' of traditional usage 'for any purpose for which land could be taken or compulsorily resume', by notice - not necessarily to an affected Aboriginal group!
Part of the significance of the Mabo decision and native title at common law is that it recognised rights enforceable against the State.
In the manner of classic 19th century paternalism the Minister is empowered, having extinguished the legal rights of Aboriginal people to land, to grant title to and interests in land similar to rights of traditional usage 'for the purpose of advancing the interests of Aboriginal persons'. The grants are a matter of the 'grace and favour' of the Minister, not as of right.
The RDA seeks to prohibit racial discrimination and bring about equality before the law. Native title at common law, the right of use of Aboriginal people to such of their traditional land as remains to them, is protected by the Act.
In determining if equality before the law is denied, regard must be had to the substance and facts rather than the form and appearance of the asserted violation In the language of Brennan, Gaudron, Toohey and Deane JJ, it is the 'effect' of the law called in question that is significant.
Equality before the law extends to rights to own and inherit property, and accordingly requires that 'holders of traditional native title' be clothed 'with the same immunity from legislative interference with their human right to own and inherit property' as other persons in the community. The right cannot be limited or recognised to a lesser extent that the rest of the community.
In 1988 the High Court in Mabo No. 1 held that Queensland legislation which sought to extinguish native title and to validate the interests of all others was rendered invalid by the Act. Deane J explained that the effect of the Act was to extinguish native title "in a context where other proprietary rights ... would not be adversely affected but would be enhanced to the extent that their validity or efficiency would otherwise be impugned by surviving traditional proprietary rights and interests". The violation of the Act consisted in the 'singling out' of native title interests for impairment or extinction while leaving other interests 'unaffected or enhanced'. The effect of the Western Australian Act is little different from the Queensland legislation. It denies any substantial content or status to the 'rights' which replace native title. Native title itself is extinguished without compensation. The Act denies genuine equality before the law with respect to native title.
A regard for 'genuine equality' must conclude that the Act violates the RDA. It is a deliberate sham to suggest the form of recognition of common law rights, when in substance it is their denial. It affords no benefits whatever to Aboriginal people.
The Land (Titles and Traditional Usage) Act ushers in a new era of legal chaos and uncertainty. The Act will be declared invalid by the High Court, but until that decision is rendered it is presumed to be valid. The Act cannot provide resource security for development and indeed will harm it. No other jurisdiction in the common law world has ever deliberately brought about the degree of resource insecurity the Act presents. Land and resource management, the proper responsibility of the State, has been poorly served by the legislation.
P.S. The Kimberley Land Council, on behalf of four Aboriginal people, lodged a High Court challenge to the WA Government's native title legislation on 3rd December 1993.
 Mabo No 2  HCA 23; (1992) 175 CLR 1, per Brennan J at 61, per Deane, Gaudron Hat 113; Johnson v Mdmosh (1823) 21 US 240. Also see Martin v Queen in right of British Cohvnbia [19S512 CNLR 58 (BCCA).
 Bartlett, R., "Resource Development and the Extinguishment of Aboriginal Title in Canada and Australia" (1990) 20 UWA L Rev 453.
 Amodu Tijani v Secretary of Southern Nigeria  UKPC 80;  2 AC 399,409-410; Calder  SCR 313, at 402 (Hall J).
 Mabo No 1 (1988) 166 CLR 186, per Mason J at 196, per Dawson J at 242, per Brennan, Toohey, Gaudron JJ at 218, Deane J at 231-232 Cf Wilson J at 206.
 Ibid., per Brennan, Toohey, Gaudron JJ at 218.
 Ibid., per Deane J at 231.