8.22 The ‘nature’ of native title refers to the ‘legal nature’ of the rights and interests. As ‘[n]ative title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title’, the rights and interests are ‘founded upon’ the traditional laws and customs of the relevant Indigenous communities.
8.23 The High Court has explained that ‘[t]he ambit of the native title right is a finding of law’. The High Court has emphasised that ‘[t]he identification of the relevant rights is an objective inquiry’. Thus identification of the native title rights and interests is a question of fact and the ‘content’ of the rights and interests will depend on the evidence in each case.
8.24 Two examples illustrate this point. In Akiba there was a ‘long and well chronicled history’ that ‘[t]he Islanders were, and are, trading fish’—that is, that ‘marine products were historically, and are today, taken for the purpose of exchange and sale’. In Banjima People v Western Australia (No 2), the trial judge distinguished the evidence before him from that in Akiba:
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.
8.25 Rather, the Federal Court found that particular resources were taken for particular uses, with limited evidence of trade in resources.
The nature of native title
8.26 Courts indicate that native title is not equivalent to common law property interests. In 2014, the High Court cautioned against confining the understanding of rights and interests ‘to the common lawyer’s one-dimensional view of property as control over access’.
8.27 In Western Australia v Ward (‘Ward’), the majority of the High Court considered native title as a ‘bundle of rights’, finding the metaphor to be ‘useful’ for two reasons. They 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.
8.28 The majority expressed the view that identification of the rights and interests is necessary in order to determine extinguishment. While the issue of extinguishment is outside the Terms of Reference for this Inquiry, whether a native title right is extinguished or merely regulated is relevant to the scope—or content—of native title.
8.29 Some stakeholders are critical of the ‘bundle of rights’ doctrine:
The bundle of rights concept of property derives in 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.
8.30 Some commentators regard such an approach to native title as one of ‘definitional over-specificity’. Sean Brennan has argued that the High Court’s prioritisation of fact-specific laws and customs has negated a more holistic conception of native title.
8.31 Some submissions reflected on how conceiving of the ‘nature’ of native title as a bundle of rights could influence the ‘content’ and exercise of native title. For the former Aboriginal and Torres Strait Islander Social Justice Commissioner, conceiving of the nature of native title as a bundle of rights inhibits economic development. North Queensland Land Council submitted that the bundle of rights doctrine ‘should not be permitted to exclude the inclusion of commercial native title rights and interests in the NTA’.
The content of native title rights and interests
8.32 A broader specification of native title rights is evident in Akiba. The High Court held in Akiba that native title rights and interests could comprise a ‘right to access resources and to take for any purpose resources’ in the native title claim area. The right could be exercised for commercial or non-commercial purposes.
8.33 In the High Court, French CJ and Crennan J held that the native title right should be conceived as a widely-framed right. They observed that ‘[t]he native title right so framed could be exercised in a variety of ways, including by taking fish for commercial or trading purposes’. The ‘sectioning of the native title right into lesser rights or “incidents” defined by the various purposes which it might be exercised’ was unnecessary as ‘[t]he lesser rights would be as numerous as the purposes that could be imagined’.
8.34 Similarly, Hayne, Kiefel and Bell JJ observed that
The relevant native title right that was found to exist was a right to access and to take resources from the identified waters for any purpose. It was wrong to single out taking those resources for sale or trade as an ‘incident’ of the right that had been identified. The purpose which the holder of that right may have had for exercising the right on a particular occasion was not an incident of the right; it was simply a circumstance attending its exercise.
8.35 Their Honours continued:
Focusing upon the activity described as ‘taking fish and other aquatic life for sale or trade’, rather than focusing upon the relevant native title right, was apt to, and in this case did, lead to error.
8.36 In Western Australia v Brown the High Court stated that ‘[t]he nature and content of a right is not ascertained by reference to the way it has been, or will be, exercised’.
8.37 In the reasons for judgment in respect of the Pilki People’s and the Birriliburu People’s native title claims, the Federal Court remarked that
it is not necessary as a matter of logic to prove that activity in conformity with traditional laws and customs has taken place in order to establish that a right exists. 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. If there is evidence of witnesses accepted by the Court that there are traditional laws and customs which give a right to access and take for any purpose the resources of the country, then the right is established even if there is no evidence of trading activity.
8.38 The determination that was made in Akiba specified the non-existence of native title rights and interests in minerals and petroleum resources. The High Court in Ward held that native title rights and interests do not include rights to statutory minerals and petroleum. The Minerals Council of Australia submitted that
minerals ownership (and ownership of some other natural resources including some water rights) is vested in the Crown in Australia imposing limits on the extent to which commercial rights and interests are able to be recognised.
Western Australia v Brown  HCA 8 (12 March 2014) ; 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).
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)).
Congoo on behalf of the Bar-Barrum People No 4 v Queensland (2014) 218 FCR 358,  (North and Jagot JJ).
Yanner v Eaton (1999) 201 CLR 351,  (Gummow J).
Western Australia v Brown  HCA 8 (12 March 2014) .
‘The nature and 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 3) (2010) 204 FCR 1, .
Banjima People v Western Australia (No 2)  FCA 868 (28 August 2013) .
‘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).
Western Australia v Brown  HCA 8 (12 March 2014) , citing Western Australia v Ward (2002) 213 CLR 1, .
Ibid  (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
Ibid , .
See, eg, Akiba v Commonwealth (2013) 250 CLR 209.
See, eg, North Queensland Land Council, Submission 17.
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.
Sean Brennan, ‘Statutory Interpretation and Indigenous Property Rights’ (2010) 21 Public Law Review 239, 259.
Australian Human Rights Commission, Submission 1.
North Queensland Land Council, Submission 17.
Akiba v Commonwealth (2013) 250 CLR 209.
Ibid,  (French CJ and Crennan J);  (Hayne, Kiefel and Bell JJ) (‘the relevant native title right that was found in this case was a right to take resources for any purpose’).
Western Australia v Brown  HCA 8 (12 March 2014) .
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) .
Akiba v Commonwealth (2013) 250 CLR 209, .
Western Australia v Ward (2002) 213 CLR 1,  (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
Minerals Council of Australia, Submission 8. Some submissions called for the position to be reviewed. See, eg, J Altman, Submission 27; V Marshall, Submission 11. Another called for the statute to be amended to include ‘a commercial right to take and use minerals wholly owned by the Crown’: North Queensland Land Council, Submission 17.