899. Absence of Treaties or Special Laws. It will be clear from the description of Australian legislation in the next Chapter that many of the arguments on which Canadian Indians and Inuit have relied to preserve their hunting and fishing rights are not available in Australia. There is no general federal legislation comparable to the Indian Act 1951 (Can) s 88. No treaties or agreements, ancient or modern, were concluded by or on behalf of the Crown with Aboriginal or Islander people. There is no conferral of exclusive federal legislative power over Aborigines and Aboriginal land, comparable to that in s 91(24) of the Constitution Act 1867 (Can). There has been nothing comparable to the debates about Indian rights leading to, and following from, the 1982 Constitution.
900. Common Law Protection? There remains at least the possibility that the common law may be held to protect Aboriginal hunting and fishing rights to some extent. Recent Canadian cases and a series of American and Privy Council decisions establish that when sovereignty over a country is acquired a radical or paramount title to that country vests in the Crown, but that the Crown’s title may be burdened by pre-existing proprietary rights. Pre-existing native title has been described as arising from:
the recognition by the Crown of a usufructuary title in the Indians to all unsurrendered lands. This title, though not perhaps susceptible to any accurate legal definition in exact legal terms, was one which nevertheless sufficed to protect the Indians in the absolute use and enjoyment of their lands, whilst at the same time they were incapacitated from making any valid alienation otherwise than to the Crown itself, in whom the ultimate title was, in accordance with the English law of real property, considered as vested.
The only Australian decision, Milirrpum v Nabalco Pty Ltd, denied the existence of a doctrine of Aboriginal title in Australia. Justice Blackburn doubted that the principle could apply to a settled, as opposed to a conquered, colony. Nor was he able to find that the doctrine was part of the English common law at the date of settlement of Australia. It would follow that rights to hunt and fish as an incident of such title would also be excluded. The issue has not yet been considered by the High Court, and was acknowledged by at least some members of the Court to be an arguable one in Coe v Commonwealth.
901. Mabo’s Case. A common law right to own, occupy, use and enjoy (and thus to hunt and fish upon) certain islands and areas of the sea is the basis of the plaintiffs’ statement of claim in Mabo v Queensland and the Commonwealth, pending before the High Court. The action arises from the Queensland Government’s intention to grant land currently held as Aboriginal reserves to Aboriginal Councils by way of a grant of a deed in trust. This would arguably result in the plaintiffs, traditional descendants of the owners of Mer (Murray Islands) and a member of the Island Council, being prevented from residing on Mer for more than one month without the permission of the Minister of Lands. The plaintiffs argue that since time immemorial and since settlement they have continuously occupied, used and enjoyed the land, and have had exclusive rights to hunt, fish and forage. These rights, they claim, were recognised on the acquisition of sovereignty by Great Britain in 1879, and continue to exist until lawfully impaired. They seek a declaration that they are the owners by custom, the holders of traditional native title, or the holders of a usufructuary right, that these rights are not impaired, or alternatively that the defendants are not entitled to impair such rights without paying compensation.
902. Implications of Common Law Claims in Australia. In practice common law claims (such as that in Mabo’s case) are likely to do little to satisfy the aspirations of most Aboriginal people for land rights. Should such common law claims be accepted by the High Court, Aboriginal claimants must first establish the existence of the right at settlement and their direct descent from those entitled to such rights at settlement. The Murray Islanders are exceptional, having well-identified interests in specific areas of land. As a semi-hunting, semi-agrarian community, they have avoided many of the devastating consequences of widespread displacement and resettlement. But even if it were held that the principle of native title exists in Australia, this would not have helped the plaintiffs in Milirrpum, who were unable to prove direct descent from holders of the land in question at settlement. In other words they were unable to prove ‘on the balance of probabilities that [their] predecessors had in 1788 the same links to the same areas of land as those which the plaintiffs now claim’. Secondly, Aboriginal claimants must establish that the right has not been abrogated. In Calder’s case in Canada, the majority held that an intention by the Crown (evidenced by Proclamation and Ordinance) to exercise absolute sovereignty on British Columbia was sufficient to extinguish native title, the exercise of sovereignty being inconsistent with ‘Aboriginal title’. On the other hand, United States’ decisions require a clear and specific indication of intent by Congress to extinguish Indian title; dealings with property that are merely inconsistent with Indian title are insufficient. Justice Blackburn, in the one Australian decision on the point, supported the view taken by the three majority judges in Calder’s case. The High Court has not yet considered the question. However, it appears that the continued existence of common law rights will be difficult to establish given the extensive statutory basis for land settlement and for the administration of Aboriginal reserves.
903. Customary Rights. An alternative possibility would be reliance upon hunting or fishing rights as independent proprietary interests of a customary kind recognised at common law. The common law does contain some scope for the recognition of customary rights in some circumstances. The rights relied on must have existed without interruption since ‘time immemorial’. The custom asserted must be ‘reasonable’. Though its manner of exercise may vary, the right must be ‘certain’, and in particular the asserted beneficiaries and the locality of the right must be certain. The requirement that there must be proof of a long and uninterrupted use of the right by the inhabitants, and the fact that the custom is unlikely to be considered ‘reasonable’ where there are others exercising inconsistent rights and asserting control over the subject land, make it difficult to envisage situations where any customary rights could have survived dealings with land in mainland Australia by the Commonwealth and the States.
904. Profits a Prendre. A distinction is generally made between the right to use land, which comes within the concept of a usufructuary or customary right, and the right to reap the profits from land (e.g. the right to hunt and fish), which cannot be so described because the exercise of such a right could exhaust the subject matter. As such the right to hunt and fish falls more properly into the category of a profit a prendre. However a profit represents an artificial and unduly restrictive way of describing the right of Aboriginal people to forage. For example, the right to fish or take game may be described as a profit for the fish or game once killed can be owned. However the right to take water cannot be a profit a prendre because water cannot be owned, and is not part of the soil. Despite these difficulties, it has been argued that the profit a prendre is useful both:
… as a tool for analyzing the aboriginal rights [and] as a technique for protecting them. I agree that there are certain common law problems to any such categorization but they are not insuperable on either theoretical or practical grounds. The profit has always been a technique used by the common law to deal with resource harvesting rights held in gross whether this be hunting, gathering or oil and gas rights. Traditionally a profit could not be vested in a fluctuating body because this would tend to the destruction of the resource. But is this a valid concern with aboriginal harvesting, if we can establish a traditional capacity to self regulate the harvest within the limits of sustainable yields? In any event, it would seem that a simple statutory declaration could surmount any technical difficulties posed by the common law. Finally, a profit classification may be of some merit insofar as it may give aboriginal people access to traditional common law remedies such as trespass and nuisance. Alternative classifications (such as licences) are far more problematic.
The common law rules relating to profits a prendre may be useful in their limited circumstances, but as a vehicle for recognition of traditional hunting and fishing its use is limited. A particular problem is their vulnerability to extinction by subsequent dealings in land.