8.21 Whether native title includes rights and interests of a commercial nature—including rights to trade and to take resources for commercial purposes—raises central questions about the scope of native title rights and interests. This question goes to both the legal nature of native title rights and interests and the content of native title rights and interests.
8.22 The ‘nature’ of native title refers to the legal nature of the rights and interests. ‘The ambit of the native title right is a finding of law’. However, in terms of the ‘content’ of native title, as noted by Hayne, Kiefel and Bell JJ in Akiba HCA:
Paragraphs (a) and (b) of s 223(1) [of the Native Title Act] indicate that it is from the traditional laws and customs that native title rights and interests derive, not the common law.
Accordingly, the content of the native title rights and interests is ‘founded upon’ the traditional laws and customs of Aboriginal and Torres Strait Islander peoples. This is ascertained by reference to the evidence brought in each claim.
Legal ‘nature’ of native title rights and interests
8.23 There have been changes in how native title has been understood since the introduction of the Native Title Act. In Mabo v Queensland [No 2] (‘Mabo [No 2]’), Brennan J referred to an earlier common law case which had described native title as, ‘burdening or qualifying’ the radical title of the Crown. The radical title of the Crown was held to be qualified by a right of beneficial user.
8.24 The formal order made by the High Court in Mabo [No 2] was to declare ‘that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the [lands of the Murray Islands]’, although subject to inconsistent grants of interests and extinguishment by legislative power of the Queensland Government, subject to Commonwealth laws.
8.25 The Native Title Act was subsequently enacted. A series of native title cases in 2002 reviewed the position in Mabo [No 2]. In Western Australia v Ward (‘Ward HCA’), the High Court strongly emphasised the Act as the ‘starting point’. The majority of the Court in Ward HCA gave emphasis to ideas of co-existence of native title with other rights and interests. In effect, the majority adopted reasoning that pointed to native title being understood more typically as a bundle of rights, rather than a title to land (beneficial user).
8.26 Thus the Native Title Act emerged as the central mechanism for recognition of Aboriginal and Torres Strait Islander peoples’ rights and interests in land and waters. Ultimately though, it is the ‘rights only [that] are recognised’—not the surrounding complex of law, custom and normative society. Disentangling the rights from the surrounding laws and society requires a ‘process of translation entail[ing] a complex fracturing of the traditional laws and customs’. While the rights only are recognised, proof of native title requires a more elaborate investigation into laws and customs as reinforced in Members of the Yorta Yorta Community v Victoria (‘Yorta Yorta’).
8.27 Courts have indicated that native title is not to be understood in terms equivalent to common law property interests, but they often still tend to draw on these concepts, using language like ‘bundle of rights’. By contrast, the former Aboriginal and Torres Strait Islander Social Justice Commissioner, Professor Mick Dodson, stated:
The recognition of native title at common law, and for the purposes of the NTA, must be on terms that are consistent with those laws and customs. … This means that the content of native title must be determined in accordance with our meanings of land ownership.
8.28 Regard to the culturally distinct, or sui generis, nature of native title is compelling at one level as giving effect to Aboriginal and Torres Strait Islander peoples’ distinctive laws and customs. Commentators suggest, however, that this characterisation of native title rights and interest may make native title a more ‘vulnerable right’.
8.29 Dr Sue Jackson and Professor Poh-Ling Tan submitted that ‘[j]urisprudence in other common law countries provides a wider spectrum of potential legal understanding of the nature of such rights’, than has been the case in Australia.
A ‘bundle of rights’
8.30 The prevailing view of the nature and content of native title is hybrid, drawing on traditional laws and customs for content, but also at times idiosyncratically adopting common law terms to describe the nature or character of the rights. In Ward HCA, the High Court indicated the ‘bundle of rights’ metaphor for native title was useful for two reasons. The Court explained:
It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom.
8.31 The High Court also considered in what circumstances native title might involve a right of exclusive possession or use of land and waters. The Court noted that:
A determination of native title must comply with the requirements of s 225. In particular, it must state the nature and extent of the native title rights and interests in relation to the determination area …
It is necessary to recognise that the holder of a right, as against the whole world, to possession of land, may control access to it by others and, in general, decide how the land will be used. But without a right of possession of that kind, it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put. To use those expressions in such a case is apt to mislead. Rather, as the form of the Ward claimants’ statement of alleged rights might suggest, it will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters.
8.32 Since that time, native title determinations may include exclusive use and possession, where the court has been satisfied that rights of control of access are found under the relevant traditional laws and customs. More typically, determinations have involved lists of activities which native title holders are able to undertake on the land and waters claimed. The distinction turns on whether the evidence supports exclusive use and enjoyment under laws and customs, and whether there has been extinguishment of the right to control access.
8.33 The identification of the character of the rights and interests in Ward HCA was held to be necessary to determine whether native title rights and interests had been extinguished. Native title may be extinguished by the legislative or executive acts of governments.Extinguishment is outside the Terms of Reference for this Inquiry, but whether a native title right is extinguished or merely regulated is relevant to the scope—or character—of native title. The test for extinguishment is if the legislative or executive acts are inconsistent with the claimed native title rights and interests. In Western Australia v Brown (‘Brown’) the High Court confirmed that ‘inconsistency is that state of affairs where the existence of one right necessarily implies the non-existence of the other’.
8.34 In Akiba HCA, the High Court held that a native title right should not be ‘severed or cut down’ into incidents.In the past, the High Court had held that native title may be partially extinguished.
8.35 Commentators suggest thatpartial extinguishment, together with the shift from a clear and plain intention to an ‘inconsistency test’ for extinguishment, has led to an ‘over-particularisation’ of the rights and interests that make up native title, and to ‘definitional over-specificity’. Commentators contend that the ‘bundle of rights’ approach has encouraged the understanding of native title rights and interests as disaggregated.
8.36 Some stakeholders suggest a ‘bundle of rights’ is inapplicable:
The bundle of rights concept of property derives from mainstream Anglo-American legal philosophy and one may well question what place it has in native title, particularly because native title is viewed by Aboriginal and Torres Strait Islander people as being holistic in nature.
8.37 The combined effect has meant that native title is often associated with subsistence-style ‘uses’, incidents or activities rather than broader rights. However, in Akiba HCA, French CJ and Crennan J held that:
A broadly defined native title right such as the right ‘to take for any purpose resources in the native title areas’ may be exercised for commercial or non-commercial purposes. The purposes may be well defined or diffuse. One use may advance more than one purpose. But none of those propositions requires a sectioning of the native title right into lesser rights or ‘incidents’ defined by the various purposes for which it might be exercised. The lesser rights would be as numerous as the purposes that could be imagined. A native title right or interest defines a relationship between the native title holders and the land or waters to which the right or interest relates.
8.38 The ‘important jurisprudential move toward a more holistic concept of native title’ by the High Court was noted in submissions.
The content of native title rights and interests
8.39 Traditional laws and customs of the claim group provide the content of native title. As these laws and customs are heterogeneous, the content of native title is variable. The identification of native title rights and interests is a question of fact, dependent on the evidence in each claim.
8.40 The importance of evidence was apparent in the Federal Court decision in Akiba v Queensland (No 3) (‘Akiba FCA’) where the native title right found was ‘to take for any purpose resources in the native title areas’. There was a ‘long and well chronicled history’ that ‘marine products were historically, and are today, taken for the purpose of exchange and sale’. The trial judge, Finn J, commented that ‘the evidence establishes beyond question that the Islanders sold marine resources for money … The Islanders were, and are, trading fish’. The South Australian Government observed that ‘there was significant and compelling evidence in that claim of extensive trade and bartering of marine resources’. In other instances the evidence may lead to a different finding. With respect to Akiba FCA, the Western Australian Government submitted that ‘evidence of that type has not been found to exist elsewhere’.
8.41 In Banjima People v Western Australia (No 2) (‘Banjima’), the trial judge, Barker J, distinguished the evidence before him from that in Akiba FCA:
The situation is not akin to the circumstances in which the claimants in Akiba (No 3) were found traditionally to take whatever resources they found at sea and were apt to trade and use it however they could.
8.42 Rather, the Federal Court in Banjima found that particular resources were taken for particular uses, with limited evidence of trade in resources. The claimed right ‘to manufacture and trade the resources of the land and waters’ was not found on the evidence. Similarly, the Northern Territory Government referred to the Federal Court’s decision in Yarmirr v Northern Territory, where Olney J had concluded that ‘[t]he evidence does not support the claim that the applicants enjoy a native title right or interest to trade in the resources of the claimed area’.
8.43 The case law at times has conflated a native title right with the evidence of its exercise. As explained in Yorta Yorta, by Gleeson CJ, Gummow and Hayne JJ, the ‘exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content’. However, they observed that the relevant statutory inquiry is ‘directed to possession of the rights or interests, not their exercise’.
8.44 Gaudron and Kirby JJ, who were in the minority in Yorta Yorta, expressed the view that ‘it is not necessary, pursuant to s 223(1)(a), to establish that those rights and interests have been continuously availed of in relation to land, or even, that they are presently availed of’.
8.45 The Federal Court, in the Pilki People’s and the Birriliburu People’s native title claims, remarked that:
In many cases, proof of activities undertaken pursuant to laws or customs will assist in proving the existence of the right. But evidence of the activity is not necessary. Thus, if the applicants had not shown that they traditionally accessed and took resources for commercial purposes, they could still show that they had the right to do so if there were traditional laws or customs which gave them such a right. In the same way, the holders of freehold do not need to show that they have leased out their properties to prove that they have the right to do so.
The specification of the right
8.46 Native title rights may be specified across a broad spectrum. Perry J, writing extra-curially, stressed that how a native title right is expressed ‘can matter greatly’. Claimants’ legal representatives specify the rights claimed on the basis of claimant and expert evidence in an application for a determination of native title. Some submissions suggested that claimants routinely seek to frame rights broadly. The South Australian Government submitted that:
While many groups currently accept a fairly standard description of their native title rights and interests and the courts are tending towards a more generalised formulation, there are a number that exhibit a novel approach contrary to established jurisprudence.
8.47 In Akiba FCA, the relevant native title right claimed was ‘a right to access and take marine resources as such—a right not circumscribed by the use to be made of the resource taken’. The High Court found that this right was limited in that it was non-exclusive, and in that it did not exist in respect of minerals and petroleum resources. Native title rights to petroleum and minerals are general exclusions from consent determinations. The native title right set out in the order of the determination was ‘the right to access resources and take for any purpose resources’ in the determined areas.
8.48 A native title right, ‘to take for any purpose resources’ of the claim area, was found on the evidence in the later cases of Willis on behalf of the Pilki People v Western Australia and BP (Deceased) on behalf of the Birriliburu People v Western Australia. Both concerned claims over land.
Western Australia v Brown (2014) 306 ALR 168, ; Akiba v Commonwealth (2013) 250 CLR 209,  (Hayne, Kiefel and Bell JJ) citing Western Australia v Ward (2002) 213 CLR 1,  (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
Yanner v Eaton (1999) 201 CLR 351,  (Gummow J).
Akiba v Commonwealth (2013) 250 CLR 209,  citing Western Australia v Ward (2002) 213 CLR 1,  (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
Congoo on behalf of the Bar-Barrum People No 4 v Queensland (2014) 218 FCR 358,  (North and Jagot JJ). ‘Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title’: Fejo v Northern Territory (1998) 195 CLR 96,  (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) citing Mabo v Queensland [No 2] (1992) 175 CLR 1, 58 (Brennan J).
Mabo v Queensland [No 2] (1992) 175 CLR 1, 50 (Brennan J); Amodu Tijani v Secretary, Southern Nigeria  2 AC 399 403 (Viscount Haldane).
Mabo v Queensland [No 2] (1992) 175 CLR 1, 76.
Ulla Secher, Aboriginal Customary Law: A Source of Common Law Title to Land (Hart Publishing, 2014) 136.
Western Australia v Ward (2002) 213 CLR 1.
‘Yet again it must be emphasised that it is to the terms of the NTA that primary regard must be had, and not the decisions in Mabo [No 2] or Wik. The only present relevance of those decisions is for whatever light they cast on the NTA’: Ibid  (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
‘Native title is recognised, and protected, in accordance with this Act’: Native Title Act 1993 (Cth) s 10.
Melissa Perry, ‘Characterising Native Title Rights: A Desert Rose by Any Other Name…’ (Paper Presented at AIATSIS National Native Title Conference 2014, Coffs Harbour, 4 June 2014) 2.
Ibid; Western Australia v Ward (2002) 213 CLR 1,  (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
See Ch 2.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422. See Ch 4.
‘Because native title has its origin in traditional laws and customs, and is neither an institution of the common law nor a form of common law tenure, it is necessary to curb the tendency (perhaps inevitable and natural) to conduct an inquiry about the existence of native title rights and interests in the language of the common law property lawyer’: Commonwealth v Yarmirr (2001) 208 CLR 1,  (Gleeson CJ, Gaudron, Gummow and Hayne JJ). This temptation is not always avoided; see Patricia Lane, ‘Native Title—The End of Property As We Know It?’ (2000) 8 Australian Property Law Journal 1.
Law Council of Australia, Submission 35, quoting Mick Dodson.
Maureen Tehan, ‘A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act’ (2003) 27 Melbourne University Law Review 523, 563.
S Jackson and PL Tan, Submission 44.
Western Australia v Ward (2002) 213 CLR 1, . (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
Sampi on behalf of the Bardi and Jawi People v Western Australia (2010) 266 ALR 537, –.
Western Australia v Ward (2002) 213 CLR 1, , .
Ibid  (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
See, eg, Akiba v Commonwealth (2013) 250 CLR 209.
Western Australia v Ward (2002) 213 CLR 1, ,  (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Western Australia v Brown (2014) 306 ALR 168, ; Akiba v Commonwealth (2013) 250 CLR 209, – (French CJ and Crennan J); ,  (Hayne, Kiefel and Bell JJ). See also Native Title Act 1993 (Cth) pt 2 div 2B; s 237A.
Western Australia v Brown (2014) 306 ALR 168, .
Akiba v Commonwealth (2013) 250 CLR 209, .
Western Australia v Ward (2002) 213 CLR 1, .
Sean Brennan, ‘Statutory Interpretation and Indigenous Property Rights’ (2010) 21 Public Law Review 239, 259.
Paul Finn, ‘Mabo into the Future: Native Title Jurisprudence’ (2012) 8 Indigenous Law Bulletin 5, 8 (‘the fragmentation of native title rights and interests … results, in my view, in the overdefinition, and subdivision of, individual rights and interests and in the dilution of a proprietary conception of native title’); Simon Young, Trouble with Tradition: Native Title and Cultural Change (Federation Press, 2008) 297, 361–2.
For discussion see Katy Barnett, ‘Western Australia v Ward: One Step Forwards and Two Steps Back: Native Title and the Bundle of Rights Analysis’  Melbourne University Law Review 462.
North Queensland Land Council, Submission 17.
French CJ and Crennan J noted ‘that proposition [ie a broadly framed right] does not exclude the possibility that a native title right or interest arising under a particular set of traditional laws and customs might be defined by reference to its exercise for a limited purpose’: Akiba v Commonwealth (2013) 250 CLR 209, .
See, eg, AIATSIS, Submission 70.
See, eg, Yanner v Eaton (1999) 201 CLR 351,  (Gummow J); Mabo v Queensland [No 2] (1992) 175 CLR 1, 58 (Brennan J).
Yanner v Eaton (1999) 201 CLR 351,  (Gummow J).
‘The … incidents of native title must be ascertained as a matter of fact by reference to those laws and customs’: Mabo v Queensland [No 2] (1992) 175 CLR 1, 58 (Brennan J).
Akiba v Queensland (No 2) (2010) 204 FCR 1, .
Ibid . For discussion, see Lauren Butterly, ‘Before the High Court: Clear Choices in Murky Waters: Leo Akiba on Behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia’ (2013) 35 Sydney Law Review 237; and Lauren Butterly, ‘Changing Tack: Akiba and the Way Forward for Indigenous Governance of Sea Country’ <http://search.informit.com.au/documentSummary;dn=234915685257993;res=IELIND>.
Akiba v Queensland (No 2) (2010) 204 FCR 1, .
South Australian Government, Submission 68. See also Northern Territory Government, Submission 31: the determination of the right ‘was made on the basis of a factual foundation; that is that the traditional laws acknowledged and customs observed by the native title holders evidenced the existence of the right’.
Western Australian Government, Submission 43.
Banjima People v Western Australia (No 2) (2013) 305 ALR 1, .
Ibid , , .
Northern Territory Government, Submission 31.
Yarmirr v Northern Territory [No 2] (1998) 82 FCR 533, 588.
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, .
Willis on behalf of the Pilki People v Western Australia  FCA 714 (4 July 2014) ; BP (Deceased) on behalf of the Birriliburu People v Western Australia  FCA 715 (4 July 2014) . At the time of writing an appeal by the State of Western Australia in respect of the Pilki People’s claim was about to be heard by the Full Federal Court (May 2015). The Western Australian Government submitted that ‘[i]mportant aspects of the law which require clarification include (a) whether evidence of activities undertaken pursuant to traditional laws and customs is required to establish the right and (b) the relevance of adaptation and change to the recognition of rights of a commercial nature’: Western Australian Government, Submission 43.
See, eg, J Altman, Submission 27. He submitted that ‘rights and interests in native title determinations can vary considerably, not just between determinations of exclusive or non-exclusive possession, but also within each category and between States and Territories … such an approach makes for a high degree of variability and potential inequity’.
Melissa Perry, ‘Characterising Native Title Rights: A Desert Rose by Any Other Name…’ (Paper Presented at AIATSIS National Native Title Conference 2014, Coffs Harbour, 4 June 2014).
Commentators suggest that claiming a broader right rather than highly specific native title rights better reflects ‘the relationship of people to country under their laws and customs’. Michael Meegan and Robert Blowes, ‘Pleadings, Limited Trials and Extinguishment Principles’ (Paper Presented at AIATSIS National Native Title Conference 2014, Coffs Harbour, 4 June 2014) 13.
Central Desert Native Title Services, Submission 26; Queensland South Native Title Services, Submission 24.
South Australian Government, Submission 34.
Akiba v Queensland (No 2) (2010) 204 FCR 1, . Note that other rights were claimed in Akiba FCA as well: Ibid . Not all were established.
Akiba v Commonwealth (2013) 250 CLR 209, .
Akiba v Queensland (No 2) (2010) 204 FCR 1, .
Akiba v Commonwealth (2013) 250 CLR 209, .
Willis on behalf of the Pilki People v Western Australia  FCA 714 (4 July 2014) ; BP (Deceased) on behalf of the Birriliburu People v Western Australia  FCA 715 (4 July 2014) . At the time of writing this report, both cases were on appeal.