Native title and rights and interests of a commercial nature

127. The ALRC has been directed to inquire into whether there should be clarification that ‘native title rights and interests’ can include rights and interests of a commercial nature. The High Court held in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (‘Akiba’) that native title rights and interests could comprise a right to access resources and take for any purpose resources in the native title claim area.^[141] The right could be exercised for commercial or non-commercial purposes.

128. This section briefly outlines the law relating to the nature and content of native title rights and interests and how these relate to s 223 of the Native Title Act and ‘connection requirements’. It discusses the concepts inherent to defining the scope of native title as they may be relevant to a commercial element of native title rights and interests. It then considers how adaptation of traditional law and custom has a bearing on commercial native title rights and interests. The section explores the meaning of ‘commercial’, with a brief overview of options for reform—including amendment of s 223 of the Native Title Act. The section concludes with approaches in comparative jurisdictions.

Nature and content of native title rights and interests

129. The definition of native title in s 223 of the Native Title Act does not contain reference to commercial rights and interests. How the law conceives of native title rights and interests influences their nature and content, and therefore, is significant when considering the possibility of native title rights and interests of a commercial character. The nature of native title often has been characterised as comprising ‘incidents’:

Each collective right, power or other interest is an ‘incident’ of that Indigenous community’s native title.^[142]

130. More recently, the High Court emphasised that ‘[t]he identification of the relevant rights is an objective inquiry. This means that the legal nature and content of the rights must be ascertained’.^[143]

A right to take resources for any purpose

131. The question of the nature and content of native title as comprising ‘separate’ incidents was directly raised in Akiba. At first instance, the Federal Court made a determination of, ‘a right to take resources for trading or commercial purposes—whether exclusive or non-exclusive.^[144] 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’.^[145] 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.^[146]

132. 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’.^[147] The distinction between a right and its exercise may cut across typical classifications that separate commercial or non-commercial uses and activities.

133. Native title is not equivalent to common law property constructs. Nonetheless, some commentators have suggested that property constructs are an important backdrop to formulating models for native title rights and interests that allow for severability and fragmentation.^[148] The High Court has cautioned against confining ‘the understanding of rights and interests which have their origin in traditional laws and customs “to the common lawyer’s one-dimensional view of property as control over access”’.^[149] Other commentators see the problem with the scope of native title rights and interests as stemming from the failure to give effect to native title as a ‘title’—that is, as conferring powers akin to exclusive possession.^[150] Some regard the approach to native title as one of ‘definitional over-specificity’.^[151] Native title has been characterised as involving ‘the over-definition, and subdivision of, individual rights and interests and … the dilution of a proprietary conception of native title’.^[152] Debates as to whether native title has a proprietary character also are relevant to examining the question of the potential scope of commercial native title rights and interests.

Non-exclusive native title rights and inconsistency

134. In clarifying whether native title rights and interests can include rights and interests of a commercial character, the exclusive or non-exclusive character of the native title rights claimed may be of significance. Only non-exclusive native title rights and interests have been recognised in the offshore.^[153] Native title cannot be recognised where there is inconsistency between the native title rights claimed and certain common law or statutory rights.^[154] However, the High Court in Akiba found no inconsistency between the non-exclusive native title right to take resources for any purpose, and the relevant Commonwealth and Queensland statutes.^[155]

Extinguishment and regulation

135. The majority in Ward considered native title as a ‘bundle of rights’.^[156] Native title, when conceived of as a ‘bundle of rights’ is integrally linked to ‘connection’ under s 223(1)(b). Generally speaking, Aboriginal and Torres Strait Islander ‘connection’ with land and waters established by reference to traditional law and custom translates into particular rights and interests with regard to land and waters.^[157] Some commentators suggest that such an approach to the legal construct of native title may allow for excessive fragmentation, and thereby, partial extinguishment of native title, as individual elements of the ‘bundle’ may be extinguished separately.^[158] The potential for fragmentation of native title rights and partial extinguishment may impact the capacity for commercial uses of native title rights and interests.

136. Questions related to whether a native title right is extinguished or merely regulated are relevant to the scope of native title, and therefore to issues of the potential for commercial native title rights and interests. In Ward, it was stated that ‘[q]uestions of extinguishment first require identification of the native title rights and interests that are alleged to exist’.^[159] Issues of extinguishment and regulation are not the central focus of examination in the Inquiry. However, in Akiba a particular issue was whether there was partial extinguishment of a native title right to take resources for any purpose, including commercial purposes. In the High Court, Hayne, Kiefel and Bell JJ, in considering the effect of the relevant statutory licensing regimes for fisheries and other marine resources, found that the determination provisions of the Act were ‘directly engaged’.^[160] They observed

not only does regulation of a native title right to take resources from land or waters not sever the connection of the peoples concerned with that land or those waters, regulation of the native title right is not inconsistent with the continued existence of that right.^[161]

137. The ALRC is interested in views as to whether the Native Title Act should make it clear that native title can include commercial native title rights and interests, particularly in light of recent case law.

Evolution and adaptation of native title rights and interests

138. Native title rights and interests must be possessed under traditional law and custom that is referable to a normative society.^[162] This will be established as a question of fact. 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’.^[163] Other claims for native title across Australia also may include a right to take resources from land and waters that relate to some aspect of trade, exchange or manufacture. In Banjima, the trial judge distinguished the evidence before him from that in Akiba:

Unlike the position in Akiba (No 3), it is not open to conclude on the evidence in this case that the claimants were entitled to take all manner of resources from the claim area. … 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.^[164]

139. Rather, the Court found that particular resources were taken for particular uses, with limited evidence of trade in resources.^[165]

140. The requirement for native title rights and interests to have their origin in a pre-sovereign (traditional) normative society is relevant to whether there can be adaptation and evolution of native title rights and interests. In Yorta Yorta the High Court held:

Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.^[166]

141. However some degree of change and adaptation of the traditional law and custom can occur. The Full Court of the Federal Court in Bennell stated:

So long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional.^[167]

142. Some commentators have argued that the requirement that native title rights and interests must be possessed under traditional law and custom, limits the extent to which ‘adaptation’ can occur. In turn it may not adequately allow for ‘commercial’ native title rights and interests.^[168]

Defining ‘commercial’ native title rights and interests

143. ‘Commercial’ is a term that is capable of various meanings. There is some ambiguity as to what may be comprised in the phrase ‘commercial native title rights and interests’. Typically, ‘commercial’ has been linked to native title rights to take resources for trade or exchange.

144. In addition, there are existing exclusions to defining the scope of commercial native title rights and interests. In Ward , for example, it was held that native title rights and interests did not include rights to statutory minerals and petroleum.^[169]

145. The general requirement that native title rights and interests must have a ‘connection’ to land and waters may also influence the scope of any definition of commercial rights and interests. In Ward for example, the High Court held there was no right to protect traditional knowledge—akin to a form of intellectual property^[170]—as it was held not to be a right in relation to land and waters. In Akiba, in respect of the claim for reciprocal rights, the High Court held that, ‘intramural reciprocal relationships between members of different island communities giv[ing] rise to obligations relating to access to and use of resources’^[171] are not rights and interests in relation to land or waters within the meaning of s 223 of the Native Title Act.

146. Section 223(1) is interpreted in conjunction with s 223(2) of the Native Title Act. The latter provision is regarded as a non-exhaustive list of native title rights and interests. It states that:

Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

147. Given that hunting, gathering and fishing rights and interests are already set out, should the listing of native title rights and interests in s 223(2) be amended? While each native title determination will ‘turn on the facts’ brought forward to establish native title, may there be value in developing an ‘indicative listing’ of commercial native title rights and interests? A suggested amendment to s 223(2) was drafted as:

Without limiting subsection (1), rights and interests in that subsection includes:

(a) hunting, gathering, or fishing, rights and interests; and

(b) the right to trade and other rights and interests of a commercial nature. ^[172]

Learning from other jurisdictions

148. The question whether there is a commercial component to Indigenous people’s rights to land and waters is a compelling issue in many comparative jurisdictions. It is raised also in the international sphere.^[173] In New Zealand, there have been several claims to rights in waters with a commercial aspect^[174] and cases seeking to establish commercial activities around a ‘right to development’.^[175] In Canada, there is a distinction drawn between Aboriginal rights and Aboriginal title. In 2013 the British Columbia Court of Appeal affirmed the existence of an Aboriginal commercial fishing right.^[176] Major agreements and settlements with Indigenous Peoples often include a component that allows for commercial utilisation of land and waters.^[177] Indigenous Australians also participate in general commercial ventures.^[178] The following question seeks to draw on experience and approaches in other relevant jurisdictions.