The framework: Mabo [No 2]

2.37       Mabo [No 2] built upon the common law jurisprudence on continuity,[62] pre-Mabo precedents[63] and the general attention directed to traditional laws and customs.

2.38       The High Court’s decision in Mabo v Queensland 1988 (‘Mabo [No 1]’) [64] was a necessary precursor to Mabo [No 2]. In turn, it relied on developments at international law that had given rise to Commonwealth anti-discrimination laws.[65] After the Meriam Island plaintiffs had lodged their statement of claim, the State of Queensland passed the Queensland Coast Islands Declaratory Act 1985 (Qld). A majority of High Court justices held that the Queensland Act was inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) and by operation of s 109 of the Commonwealth Constitution, thereby invalid.[66] The Racial Discrimination Act has continued to have an important role in the protection of native title rights and interests under the Native Title Act.

2.39       In Mabo [No 2], the majority of the High Court declared that the pre-existing rights of the plaintiffs survived the annexation of the Meriam Islands by Great Britain.[67] Brennan J held that, although Australia was settled under the doctrine of terra nullius, it was not ‘desert uninhabited’ in fact.[68] The notion that Indigenous Australians were ‘barbarous’ or ‘without a settled law’ was rejected.[69]

2.40       Brennan J further noted:

Until recent times, the political power to dispose of land in disregard of native title was exercised so as to expand the radical title of the Crown to absolute ownership but, where that has not occurred, there is no reason to deny the law’s protection to the descendants of indigenous citizens who can establish their entitlement to rights and interests which survived the Crown’s acquisition of sovereignty.[70]

2.41       The majority in Mabo [No 2] thus recognised ‘a form of native title which, in cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their law and customs to their traditional lands’.[71] The acquisition of sovereignty did not require that all land vested beneficially in the Crown.[72] Rather, the Crown acquired a radical (or ultimate) title ‘burdened’ by native title:

Where a proprietary title capable of recognition by the common law is found to have been possessed by a community in occupation of a territory, there is no reason why that title should not be recognized as a burden on the Crown’s radical title when the Crown acquires sovereignty over that territory.[73]

2.42       Brennan J stated that ‘a mere change in the sovereignty does not extinguish rights to land’.[74] However, the judgment stressed the co-extensive sovereign power of extinguishment in relation to those pre-existing rights.[75] Toohey J held that the fact of the presence of indigenous inhabitants on acquired land precludes beneficial title in the Crown: ‘It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title’.[76] Occupancy as the foundation of native title has not been generally accepted by Australian courts.[77]

2.43       Brennan J held that a clan or group has to continue to acknowledge and observe traditional laws and customs in order that their traditional connection with the land is substantially maintained.[78] While acknowledging that the proof of such acknowledgement of laws and customs may involve practical constraints, the judgment contained the statement that when ‘any real acknowledgment of traditional law and any real observance of traditional customs’ has ceased, ‘the foundation of native title has disappeared’.[79]

2.44       Sean Brennan, Brenda Gunn and George Williams note:

Mabo (No 2) left the ‘settlement’ theory for the acquisition of Crown sovereignty undisturbed. But traditional law and custom—an additional source of law in Australia that does not derive from the Crown—was newly recognised as a coherent system. Native title adjudication henceforth would become an ‘examination of the way in which two radically different social and legal systems intersect’.[80]

Native title: continuity and proof

2.45       There is an inextricable relationship between the rules of recognition and the rules on proof. Brennan J’s judgment as adopted in s 223 of the Native Title Act set the initial rules as to what must be proved for a native title determination. In Sampi, French J (as he then was) referred to these as the rules of recognition: ‘the common law and the Act establish the rules for determining whether native title rights and interests exist under non-indigenous law. These are the rules of recognition’.[81] The rules of recognition determine which of the rights and interests that pre-existed sovereignty will be recognised by the new sovereign. They are the interface between the common law and indigenous laws and customs.

2.46       In Mabo [No 2],Brennan J had indicated that native title ‘has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’.[82] This statement, strongly affirmed in later case law, marks the adoption of the ‘laws and customs’ approach to ‘continuity’ in the recognition of native title. As Dr Paul Burke comments,

the most fundamental choice was to adopt a ‘laws and customs’ approach in which ideas of ‘laws and customs’ become universal, cross-cultural means of recognition.[83]

2.47       In Fejo v Northern Territory, the High Court stated:

Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law.[84]

2.48       This was a hybrid model of the doctrine of recognition and continuity.[85] Secher notes that by ‘combining aspects of the continuity and recognition doctrines, Brennan J’s conclusion on the effect of the change in sovereignty on pre-existing land rights in Australia effectively reconciled these two formerly distinct doctrines and replaced them with a singular doctrine: continuity pro tempore’.[86] The hybrid model meant that English land law did not apply upon sovereignty to the pre-existing rights and thereby placed stronger emphasis on the need to demonstrate continued acknowledgement of laws and customs than the doctrine originally derived from British Imperial law.[87] The doctrine of continuity had originated in the Imperial law context as principles that allowed two legal systems to co-exist, albeit with one system having supremacy. The rules that the existing laws continued until abrogated, had evolved to require positive proof of the factual existence of laws and customs.

As to proof of native title, there was no presumption of continuance and a requirement was imposed that particular traditional laws and customs must continue to be observed …[88]

2.49       This requirement for factual confirmation of the ‘continuity of laws and customs’ is embedded in the proof of native title in the Native Title Act. Thus, while Mabo [No 2] provided an important foundation for recognising native title within Australian law, it set in place a model that was susceptible to introducing particular stringencies with respect to proof. The emphasis on the need for Aboriginal or Torres Strait Islander claimants to provide evidence of the acknowledgment of traditional laws and customs, was to develop into strict requirements for continuity from the pre-sovereign period, and in emphasising ‘normativity’ in Yorta Yorta.[89]

2.50       The jurisprudence also set up an implicit problem of the degree of change or evolution that may be possible in traditional laws and customs. Subsequently, the doctrine of continuity was further reshaped under statutory construction of the Native Title Act,[90] which would lead to extensive judicial analysis of what constitutes a substantial interruption to the acknowledgment of law and custom. This reshaping has amplified the requirements for proof of native title. These issues are considered in greater detail in Chapters 4–7.

After the Mabo decision

2.51       The Mabo [No 2] decision remains remarkable in that it navigated a path between extremes:

On the one hand, the implications of sovereignty and the demand for a coherent skeleton of principle in the law prevented a wholesale reappraisal of Australian land law. On the other hand, the demands of justice prevented a simple confirmation of the extinguishment of all Indigenous rights to land.[91]

2.52       The decision retained central principles of the Australian land law, resources and property law systems,[92] and the constitutional basis of the Australian nation,[93] while allowing the recognition of Aboriginal and Torres Strait Islander peoples native title rights and interests in lands and waters.

2.53       The Western Australian Government acknowledged its significance in that

the present concepts of native title derive from Mabo No 2, and, in turn, from Australia’s unique political and legal history, including its history of European settlement. Any proposed changes to the native title system, especially any changes to s 223(1) of the NTA, must take into account these historical foundations of native title.[94]

2.54       The recognition model drawn from Mabo [No 2] and common law jurisprudencebut refocused upon traditional laws and customsset the basis for the subsequent development of native title law.[95]