The basis of native title law

2.26       The source for native title in Mabo [No 2] was the recognition by the common law of the pre-existing rights and interests of Aboriginal and Torres Strait Islander peoples.^[21] 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.^[22]

2.27       This form of judicial ‘recognition’ is part of a long standing tradition in the common law system where courts give legal effect to ‘rights’.^[23] The common law, derived from Britain, constituted the law ‘received’ in Australia at settlement.^[24] Common law courts have long asserted their power to protect people’s rights.^[25]

2.28       ‘Recognition’ also has a more specific genesis. It refers to the historical body of law that governed the British acquisition of colonies, and which included the doctrine of recognition, and the associated doctrine of continuity.^[26]

2.29       In the current Australian context, the concept of recognition links the common law and statute via the concepts of ‘recognition and protection’ for native title, expressed in the Objects of the Native Title Act.^[27]

2.30       Both courts and the legislature are part of the law-making system. Courts interpret and apply statutes and develop the body of case law rules and principles, subject to a concept of parliamentary sovereignty. This has proven central to the understanding of native title as it has developed in the law around the Native Title Act.^[28]

The Native Title Act

2.31       Mabo [No 2] provided the source for the legal definition in s 223 of the Native Title Act.^[29] The wording there reflects the findings ‘that proof of native title requires proof that there is identifiable group, traditional connection with the land and the group’s laws and customs, and the maintenance of connection’.^[30] The High Court, in Ward, acknowledged the link, stating that ‘pars (a) and (b) of s 223(1) plainly are based on what was said by Brennan J in Mabo [No 2]’.^[31]

2.32       Secondly, Mabo [No 2] drew upon long-established common law principles arising from the British colonial experience and the jurisprudence from comparable countries, such as Canada.^[32] The majority in the High Court, in Mabo [No 2], was guided by international law and human rights principles.^[33] Submissions emphasised that Mabo [No 2] has been accepted as a principled platform for dealing with historical injustice.^[34] AIATSIS noted that the case has provided a model for the courts in several countries.^[35]

2.33       When the Act was being drafted, the assumption was that the law concerning connection requirements would develop in line with the initial common law.^[36] Once the Native Title Act was in place, some argued that the High Court gave ‘the concept of “recognition” a narrower scope than … Parliament intended’.^[37] According to another view, this process unnecessarily reduced the influence of the body of common law principles.^[38]

2.34       In Ward, however,the Court stated: ‘[b]ecause what is claimed in the present matters are claims made under the Native Title Act, for rights defined in the Native Title Act, it is that statute which governs’.^[39] In Yorta Yorta, the majority of the High Court held that the ‘common law of Australia cannot be understood as a form of drafting by incorporation’.^[40]

2.35       In 2013, the High Court noted the contribution of the common law to recognition of native title:

It is a necessary condition of their inclusion in a determination that the rights and interests are recognised by the common law of Australia. That condition flows from s 223(1)(c). ‘Recognise’ in this context means that the common law ‘will, by the ordinary processes of law and equity, give remedies in support of the relevant rights and interests to those who hold them’.^[41]

2.36       Given the foundation of the Native Title Act in both statute and the common law, it is appropriate for the ALRC to consider both areas. Common law and statute have had an intertwined role in defining and interpreting native title.^[42] In particular, the proposed reforms seek to refocus on ‘core elements’ in the definition of native title.