A Jurisprudence of Difference: the Denial of Full Respect in the Australian Law of Native Title

A JURISPRUDENCE OF DIFFERENCE: THE DENIAL OF FULL RESPECT IN THE AUSTRALIAN LAW OF NATIVE TITLE

Stephen Charles Herne BJuris/LLB (WA), LLM (Syd)

Student number 17211501 University of Western Australia

This thesis is presented for the Degree of Philosophy of the University of Western Australia Faculty of Law 2007 Preface

The recognition of native title changed the foundations on which the Australian law of real property rested. However, the phrase “the promise of Mabo ” is not one much heard any more, rather one talks of a “high water mark”, as if Wik and Yanner v Eaton belonged to a golden age long passed. While Mabo (1992) affirmed native title as a legal right of exclusive occupation and possession, it denied any legal remedy for 200 years of dispossession and extinguishment, and while Wik (1996) affirmed a diminished native title on land subject to pastoral leases, it has been interpreted to deny native title any equality of interest with other proprietary rights.

What now is the state of the Australian law on native title? The sad fact is that more than ten years after Mabo and after years of “debilitating litigation”, 1 no one has a positive word to say about native title as a coherent legal doctrine, least of all, the High Court. 2 While it is universally conceded that the settlement of native title issues is best achieved by agreement rather than litigation, there remains a need to focus on the fundamental legal principles which underlie the recognition and protection of native title in Australia, in order that informed discussion of native title can take place and that settlements may have a clear foundation.

The object of this thesis is to examine the way in which Australian law has conceived of native title as a legal right to property. This is done by reference to the fundamental legal principles that underlie the recognition of native title and the protection of proprietary interests in land. What is revealed is a constant tension between legal principle and pragmatic concerns.

Thesis

The Thesis consists of one Volume containing a Summary of Contents, Table of Contents, Text, Bibliography, and Table of Cases and Legislation.

Acknowledgments

I wish to acknowledge and thank my supervisor, Professor Richard Bartlett, for his advice and assistance on matters of approach and content, style and substance.

Stephen Herne

1 Paul Havemann, Introduction, in Havemann P (ed), Indigenous Peoples’ Rights in Australia, Canada, and New Zealand (Auckland: Oxford University Press 1999) at 5. 2 For example, Western Australia v Ward (2002) 213 CLR 1 at [560] per McHugh J, at [606] per Callinan J; Wilson v Anderson (2002) 213 CLR 401 at [68] per Kirby J. SUMMARY OF CONTENTS

CHAPTER 1 – INTRODUCTION

CHAPTER 2 - COMPARATIVE JURISPRUDENCE: NATIVE TITLE AS A PROPERTY RIGHT

CHAPTER 3 - FULL RESPECT: THE STANDARD BY WHICH TO ASSESS THE CONCEPTUALISATION AND EXTINGUISHMENT OF NATIVE TITLE

CHAPTER 4 - THE DENIAL OF FULL RESPECT IN THE CONCEPTUALISATION OF NATIVE TITLE

CHAPTER 5 – RADICAL TITLE DOES NOT AFFECT THE CAPACITY OF NATIVE TITLE HOLDERS TO ASSERT PROPERTY RIGHTS

CHAPTER 6 - THE DENIAL OF FULL RESPECT IN THE EXTINGUISHMENT OF NATIVE TITLE

CHAPTER 7 - AN OVERALL ASSESSMENT OF THE DENIAL OF FULL RESPECT

BIBLIOGRAPHY TABLE OF CASES AND LEGISLATION TABLE OF CONTENTS

CHAPTER 1 – INTRODUCTION ...... 1

§1.1 The Problem...... 1 §1.2 An overview of the Australian law of native title...... 2 §1.3 The denial of full respect...... 6 §1.4 Structure of Thesis ...... 8

CHAPTER 2 - COMPARATIVE JURISPRUDENCE: NATIVE TITLE AS A PROPERTY RIGHT...... 11

§2.1 Crown sovereignty, Aboriginal sovereignty and native title ...... 12 §2.2 Native title as property ...... 13 (a) Native title as a property right akin to ownership 13 (i) New Zealand: Maori title 13 Maori title as a property right 13 Maori title as a communal right 14 The Wi Parata years 1877-1986: retreat from recognition 14 (ii) Canada: Aboriginal title 15 Aboriginal title as a property right 15 Aboriginal title as a communal right 16 (iii) US: Indian title 17 Indian title as a sovereign right 17 Indian title as a property right 17 Indian title as a communal right 19 Unrecognized Indian title as a permissive occupancy 19 (b) Extinguishment of native title 21 (i) New Zealand: extinguishment of Maori title 21 Extinguishment by clear and plain intention 21 No principle of extinguishment by grant of tenure 22 (ii) Canada extinguishment of Aboriginal title 22 Extinguishment requires clear and plain intention 22 No principle of extinguishment by grant of tenure 23 (iii) USA: extinguishment of Indian title 23 Extinguishment by sovereign act 24 Extinguishment requires clear and plain intention 24 No extinguishment by a grant of tenure 24 (c) Compensation for extinguishment of native title 25 (i) Compensation for extinguishment of Maori title 25 (ii) Compensation for extinguishment of Aboriginal title 26 (iii) Compensation for extinguishment of Indian title 26 §2.3 Aboriginal rights...... 28 §2.4 Conclusion: native title as ownership and property...... 30

CHAPTER 3 - FULL RESPECT: THE STANDARD BY WHICH TO ASSESS THE CONCEPTUALISATION AND EXTINGUISHMENT OF NATIVE TITLE ...... 32

§3.1 Acquisition of sovereignty is based on full respect for pre-existing rights. 33 (a) Acquisition of sovereignty by settlement, conquest and cession 33 (b) Pre-existing rights survive the change in sovereignty and are fully respected 33 (c) Aboriginal communities as objects of Crown sovereignty 35 (d) Native title to be reconciled with Crown sovereignty 36 §3.2 The Continuity Doctrine: the common law principle of full respect for native title ...... 38 (a) Introduction of English law 38 (i) Acquisition of sovereignty by settlement 39 (ii) USA: The discovery doctrine 39 (iii) Australia: settled colony doctrine applied 40 (b) English law is introduced and Aboriginal law is displaced 42 (c) The Continuity Doctrine: pre-existing rights continue as the common law right of native title 43 (d) English law, modified to fully respect native title, becomes Australian law 44 (e) Native title includes rights unknown to the common law: a proposition of full respect 46 (f) Conclusion 48 §3.3 The principle of equality before the law dictates the recognition of native title 49 (a) The doctrine of absolute Crown ownership as a denial of the common law principle of equality before the law 49 (b) Denial of native title as a denial of the right to enjoy property contrary to the guarantee of equality before the law in the RDA 51 (c) The dictates of substantive equality 53 (i) Formal equality and substantive equality 53 Formal equality 53 Substantive equality 54 Infringing substantive equality by singling out native title 54 Infringing substantive equality by the making of arbitrary distinctions 55 (ii) Native title as a property right protected by a principle of substantive equality before the law 55 (iii) Native title as a right enjoyed only by Aboriginal people? 56 (d) Conclusion: equality before the law as a basis for the recognition of native title 57

CHAPTER 4 - THE DENIAL OF FULL RESPECT IN THE CONCEPTUALISATION OF NATIVE TITLE...... 58

§4.1 Native title: the translation of traditional rights into common law rights .. 60 (a) The initial translation: native title as communal ownership 60 (b) The revised translation: native title as a bundle of rights 62 §4.2 The attempt to perceive the existence of traditional rights on the basis of full respect...... 65 (a) Perceiving rights and interests with full respect 65 (b) Aboriginal connection to land: a complex unity 66 (i) Communal and group rights and obligations 68 (ii) The centrality of the community: the locus of exclusive possession 70 (iii) The right to speak for country as control over access 71 (iv) Traditional use- rights 72 (v) Individual rights and obligations 73 (vi) Co-existence of communal and individual rights and obligations 74 (c) Conclusion: the Aboriginal connection to land and the language of full respect 75 §4.3 The intersection between normative systems: the denial of full respect for native title as a common law right ...... 76 (a) The intersection between two normative systems exists to enable a right to be expressed in terms that are meaningful to the common law 76 (b) The fragmentation of the Aboriginal connection to land: the common law as a jurisprudence of rights 77 (c) The rhetoric of difference and new rules of right-recognition 78 (i) The intersection is applied to assert the primacy of the common law perspective 78 (ii) The doctrine of acceptable custom: traditional law as a source of law that is subordinate to the common law 80 (iii) The skeletal principle: native title as different to common law rights and therefore subordinate to common law doctrines/principles 84 (iv) The principle against antithetical rights: native title as subordinate to the common law 86 (v) Conclusion on the rules of right-recognition 86 (d) The content limitation of the native title right 88 (i) The date of sovereignty as the date of the intersection between “legal” systems – a frozen rights approach 88 (ii) The frozen rights approach applied 90 Frozen title 90 Frozen use-rights 90 (iii) A conclusion on the frozen rights approach 91 (e) A conclusion on the intersection as a process to deny full respect to native title 91 §4.4 Native title: the failure to search for meaningful title...... 93 (a) Espousal of full respect for the Aboriginal perspective in the expression of the common law right of native title 93 (b) Native title as property 95 (i) Property: a right against the world 95 (ii) Property as legally recognized power: a bundle of control and use rights 96 (iii) Property as commodity: value and alienation 98 (iv) Conclusion on native title as property 99 (c) Native title as title and ownership 99 (i) Title is ownership 99 (ii) Title as exclusionary rights of control 100 (iii) Native title as a bundle of rights: the denial of meaningful title 102 (iv) Native title as a communal title 103 (v) Native title rights held by individuals 104 (d) Native title as a property right with sui generis content 105 (i) Native title as a sui generis right 105 (ii) Native title as property with a sui generis content 106 (iii) Native title as sui generis property 107 (iv) Australian jurisprudence: native title as sui generis property 110 Native title as a personal right to land 110 Native title as a confusion between common law right and traditional right 111 (v) Conclusion 112 (e) Native title: alienation and ownership 112 (i) US jurisprudence distinguished: two laws and two sovereignties 113 (ii) The limitation on alienation: protecting Aboriginal property rights 115 (iii) The limitation on alienation: controlling colonial settlement 115 (iv) The limitation on alienation: the Crown as the source of title 116 New Zealand jurisprudence 116 Canadian jurisprudence 117 Conclusion 118 (v) The limitation on alienation as explained in Mabo: an affirmation of native title as property 118 Brennan J: native title as an inalienable property right 118 Deane and Gaudron JJ: the personal right argument and the sovereignty argument 119 (vi) Conclusion: inalienability as consistent with native title as ownership 119 §4.5 The denial of full respect: a conclusion...... 121

CHAPTER 5 –RADICAL TITLE DOES NOT AFFECT THE CAPACITY OF NATIVE TITLE HOLDERS TO ASSERT PROPERTY RIGHTS...... 123

§5.1 Radical title: distinguishing imperium and dominium ...... 124 (a) Imperium and dominium 124 (b) Allodial title 126 §5.2 Radical title confers no proprietary interest ...... 127 (a) Radical title as dominium: the early jurisprudence 127 (b) Radical title as imperium: Crown ownership not established by the acquisition of radical title 132 (i) Australian jurisprudence: radical title as a concomitant of sovereignty 132 (ii) Australian jurisprudence: radical title as a postulate of the doctrine of tenure 134 View of Brennan J (Radical title expanding to allodial title) rejected in Wik 135 View of Deane and Gaudron JJ (radical title as proprietary title) abandoned 136 (iii) New Zealand jurisprudence 137 (iv) Canadian jurisprudence 137 §5.3 The Consequences of radical title as imperium ...... 138 (a) Radical title does not authorise the direct grant of estates 138 (b) Radical title fully respects native title as ownership and property 139 (c) Native title as a burden on radical title and removal of that burden140 §5.4 The parallel approach of US jurisprudence: fee title...... 142 §5.5 Conclusion: radical title as an affirmation of native title as ownership and property...... 145

CHAPTER 6 - THE DENIAL OF FULL RESPECT IN THE EXTINGUISHMENT OF NATIVE TITLE...... 146

§6.1 The getting of allodial title...... 148 (a) The Crown as source of title: a doctrine to justify the subject’s right of ownership, not the Crown’s right to land 148 (i) The feudal context of title to land 149 (ii) Doctrine of tenure 150 (iii) Doctrine of estates 151 (iv) The fictions of allodial title and presumed Crown grant support the doctrine of tenure 152 (v) After grant of an estate in fee simple the Crown retains no proprietary interests in land 153 (vi) Fictional grants of an estate in fee simple 154 Adverse Possession 154 Presumption of lost grant 156 Possessory Title 156 (vii) Conclusion 156 (b) Crown must have interests in land before it can grant interests in land 157 (i) Australian jurisprudence: the principle that the Crown must have title before grant is affirmed 158 (ii) Udal law: the Crown must have title before grant 159 (iii) New Zealand jurisprudence: Crown must have title before grant 160 (iv) Canadian jurisprudence: Crown must have title before grant 161 (v) US jurisprudence distinguished 162 (c) Acquisition of allodial title 162 (i) Acquisition of allodial title in England 162 (ii) Acquisition of allodial title in the Australian Colonies 162 (iii) Acquisition of allodial title by exercise of prerogative power 163 (iv) Acquisition of allodial title by purchase 163 (v) Presumed acquisition of allodial title in the absence of other proprietors 164 (vi) Acquisition of allodial title by legislation 166 (d) Avoiding the ownership debate in Australia 167 (e) The Crown as the source of title in the absence of allodial title 171 §6.2 Because native title is a property right, a clear and plain legislative intention to extinguish is required ...... 172 (a) Extinguishment of property rights requires a clear and plain intention 173 (b) Extinguishment of native title requires a clear and plain intention 174 §6.3 Extinguishment of native title in the absence of acquisition of allodial title or a clear and plain extinguishment: the Crown grant of rights to land ... 177 (a) Crown use of land does not extinguish native title 178 (b) The Crown cannot by grant derogate from rights or privileges 180 (i) Stead v Carey: the principle against the invasion of rights by Crown grant 181 (ii) The honour of the Crown: the king not to be deceived in his grant 182 (iii) The Crown cannot by grant destroy vested rights 185 (c) Native title as a fragile right 187 (d) Australian jurisprudence: the extinguishment of native title by grant of an estate in fee simple 192 (e) Comparative jurisprudence: no extinguishment of native title by grant of an estate in fee simple 196 (i) US jurisprudence 196 Buttz v Northern Pacific Railroad 119 US 55 (1886) 198 United States, Missouri, Kansas & Texas Railway Co v Roberts 152 US 114 (1894) at 117-118 199 (ii) New Zealand jurisprudence 199 Te Teira Te Paea v Te Roera Tareha [1902] AC 56, 65 200 Manu Kapua v Para Haimona [1913] AC 761, 766-767 201 Faulkner v Tauranga District Council [1996] 1 NZLR 357, 365- 366 203 (iii) Privy Council (west African) jurisprudence 204 (iv) Canadian jurisprudence 205 Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513, 549 205 Delgamuukw BCCA 206 Aboriginal use-rights not extinguished by grant of an estate in fee simple 208 A conclusion on Canadian jurisprudence 209 (f) Effect of the Racial Discrimination Act on grants of estates in fee simple 209 (g) Conclusion 211 §6.4 Compensation for extinguishment of native title...... 213 (a) Presumption to compensation for taking property 213 (b) Presumption to compensation for taking native title 214 (c) Damages for interference with property or native title rights 215 (d) Comparative jurisprudence: a right to compensation for the extinguishment of native title 217 (i) New Zealand 217 (ii) Canada 217 (iii) US jurisprudence 218 (e) Australian jurisprudence: no presumption to compensation for the extinguishment of native title 218 (i) Mabo 1: a presumption to compensation affirmed 218 (ii) Mabo 2: a presumption to compensation denied 218 Deane and Gaudron JJ: a presumption to compensation 219 Toohey J: a presumption to compensation 219 Mason CJ, Brennan J, McHugh J, Dawson J: no presumption to compensation 220 (iii) The extinguishment of native title as the Crown acquisition of a right 221 (f) Conclusion 223

CHAPTER 7 - AN OVERALL ASSESSMENT OF THE DENIAL OF FULL RESPECT ...... 225

§7.1 The recognition of native title: English law is modified to become Australian law ...... 226 §7.2 Who owns the land - Aboriginal Communities or the Crown? ...... 227 (a) Comparative jurisprudence: the recognition of Aboriginal ownership and the acquisition of ownership by the Crown 227 (b) Australian jurisprudence: the avoidance of the ownership question 227 §7.3 Full Respect as the standard to determine the recognition and extinguishment of native title...... 229 §7.4 The jurisprudence of pragmatism: The need to legitimate the Crown exercise of authority creates new principles of destruction of property rights230 (a) Extinguishment of native title by mere use 230 (b) Extinguishment of native title by Crown grant 231 §7.5 Native title as a lesser right: The conceptualisation of native title in accordance with the principles of extinguishment ...... 232 (a) Native title as a right under Australian law 232 (b) The subordination doctrines: native title as a lesser common law right 232 (c) Native title is labelled a fragile right to distinguish it from other property rights 233 §7.6 Native title as a fragile property right...... 234 (a) The translation of pre-existing rights into property rights 234 (b) Native title as a property right with sui generis content 234 (c) The destruction of property rights: more than a mere side wind required 235 (d) Crown grants and the Crown as source of title 235 (e) An appropriate principle about priorities 236 (f) The presumption of compensation for the loss of native title 236 §7.7 Concluding remarks...... 237

BIBLIOGRAPHY ...... 239

TABLE OF CASES AND LEGISLATION ...... 244

Chapter 1- Introduction

CHAPTER 1 – INTRODUCTION ______

§1.1 The Problem

This thesis is a quest to understand how it came to be that Australian law recognised native title on the basis of full respect for pre-existing rights to land, yet developed a doctrine of extinguishment of native title by grant of tenure, and extinguishment of native title without payment of compensation: propositions inconsistent with comparative jurisprudence, and fundamental principles of Australian law with respect to property.

The thesis examines the unique Australian conceptualisation of native title, which lays part of the foundation for the unique law of extinguishment. It then examines the bases on which the Australian law of extinguishment of native title rest. The thesis concludes that, in legal principle, a doctrine of extinguishment of native title by grant of tenure, and extinguishment of native title without payment of compensation, do not rest on established legal principle, but on newly created doctrines based on pragmatic concerns.

Title to land is ownership, and ownership is possession of the right of exclusionary control over land. This thesis attempts to show more clearly than previous analyses that the Australian law of extinguishment of native title has been constructed on a foundation, if not of sand or bare assertion, then one that has avoided discussion of the foundational questions of property law: who owned the land prior to sovereignty, and who now owns land over which native title has not been extinguished? In England, by legal fiction, the Crown had absolute beneficial ownership of land (allodial title). 1 The decision in Mabo rejected the application of this fiction to the Australian Colonies, and suggested a change in the foundation of the Australian law of property. In the comparative jurisprudence this new foundation is acknowledged and embraced. In Australian jurisprudence, native title is recognized only to the extent it does not disturb the prior mistaken assumptions of property law.

1 Mabo at 48 per Brennan J: “an absolute beneficial title (an allodial title) to the land”.

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§1.2 An overview of the Australian law of native title

Pre-Mabo Australian case law held that on the assertion of sovereignty over the Australian colonies, absolute ownership of land vested in the Crown, and therefore no interests in land not derived from a Crown grant could exist. 2 There could be no doctrine of native title. 3 This was so despite recognition prior to the 1850s at the executive level of government that Aboriginal communities asserted “well defined proprietary rights” over the land. 4 A doctrine of Crown ownership was consistent with the fictions on which the law of real property in England rested, at the time the Australian colonies were settled. 5 But a doctrine of absolute Crown ownership was not consistent with English law as introduced into Canada, New Zealand, the American Colonies and the African colonies.

In Mabo v Queensland (1989) 166 CLR 186 [ Mabo 1 ] the High Court considered the Queensland Coast Islands Declaratory Act 1985 (Qld) which was enacted to expressly extinguish native title. The Court held that native title rights and interests in land, if they existed, were rights protected against discriminatory extinguishment by State legislation after 31 October 1975 under the guarantee of equality before the law in s.10 of the Racial Discrimination Act 1975 (Cwth) [ RDA ]. The decision was explained in terms of the RDA protecting the right to enjoy “property” 6. Thus, while an undefined native title was stated to be property, Mabo 1, resolved neither the actual meaning of “native title” nor the pre-RDA extinguishment of it.

2 In Attorney-General v Brown (1847) 1 Legge 312 at 316 the Supreme Court of New South Wales stated: “that the waste lands of this Colony are, and ever have been, from the time of its first settlement in 1788, in the Crown; that they are … as his or her property … and may now be effectually granted to subjects of the Crown”. Similarly Randwick Corporation v Rutledge (1959) 102 CLR 54 at 71 per Windeyer J; New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337 at 438-439 per Stephen J. Roberts-Wray K, Commonwealth and Colonial Law (London: Stevens and Sons, 1966) at 631 called this proposition “startling and, indeed, incredible”. 3 Milirrpum v Nabalco (1971) 17 FLR 141 [Milirrpum]. At 272-273 Blackburn J rejected the claim for recognition of native title on the following bases: a doctrine of common law native title had no place in a settled colony except under express statutory provisions; under such doctrine, pre- existing native interests are not assumed to be recognised unless they are rights of private property; it was not proved that the claimants possessed rights of property with respect to the land. 4 Governor Gawler, Gawler to Russell, 1 August 1840, CO 13/16 at 56. A significant number of government documents contain clear acknowledgment of such rights, such as the Letters Patent establishing South Australia in 1836: Reynolds H, The Law of the Land (Melbourne: Penguin, 1987) Chapters 3 and 5. 5 Blackstone W, Commentaries on the Laws of England (Facsimile of First Edition published in 1765) (Chicago: U Chicago Press, 1979) [hereafter Blackstone Commentaries], Vol 1 at 51 “the King is the universal lord and original proprietor of all the lands in his kingdom”, and therefore, at 53, “all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, of the Crown.” 6 Mabo 1 at 217-18 per Brennan, Toohey and Gaudron JJ: “The question which s.10 poses in the present case is whether, under our municipal law, the Miriam people enjoy the human right to own and inherit property … to a more limited extent than other members of the community… But the 1985 Act destroys the traditional legal rights in and over the Murray Islands possessed by the Miriam people ... and, by an arbitrary deprivation of that property, limits their enjoyment of the human right to own and inherit it.”

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In Mabo v Queensland (No 2) (1992) 175 CLR 1 [ Mabo ] the High Court recognized and explained the meaning of native title for the first time. The Court held that Australian law recognised native title as the translation of communal, group and individual rights and interests with respect to land, held under the traditional laws and customs of the Aboriginal community, into (common law) legal rights:

The term “native title” conveniently describes the interests and rights of indigenous inhabitants in land, whether communal group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants. 7

The appropriate expression of native title was:

the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands. 8

The Native Title Act 1993 (Cwth) 9 was the Commonwealth Parliament's response to Mabo . The principal object of the Act was: “to provide for the recognition and protection of native title.” 10 The definition of “native title” in s.223 of the Act follows the language used by Brennan J in Mabo :

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.

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

As originally enacted, the Native Title Act validated various past acts, including Crown grants of tenure, which may have been invalid by reason of the existence of native title, and enabled States and Territories to enact similar validation

7 Mabo at 57 per Brennan J. 8 Mabo at 217 (final order). 9 See Bartlett RH, Native Title in Australia (2ed, Chatswood: LexisNexis, 2004); Perry M and Lloyd S, Australian Native Title Law (Sydney: Law Book Co, 2003). 10 Native Title Act s.3(a).

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regimes.11 While the Act provided for the extinguishment of native title by validated past acts, being acts occurring after the commencement of the RDA , the common law governed any pre-RDA extinguishment of native title. 11A The Wik Amendments (see below) provided a comprehensive extinguishment regime.

The formulation of native title in the Act is now the starting point for the consideration of native title. 12 It was the understanding of Parliament that the Act was recognising what the common law had described as native title 13 and both the Act and the common law refer to the same thing when they talk about native title. 14 The Act is to be given a beneficial construction with respect to the recognition and protection of native title. 15

Following Mabo , determinations of native title which do not involve issues of extinguishment are generally in the following form:

rights of exclusive possession: that is, the right to possess, use, occupy and enjoy the area to the exclusion of all others. 16

11 All have done so: Land Titles of Validation Act 1994 (Vic); Native Title (New South Wales) Act 1994 (NSW); Native Title (Queensland) Act 1993 (Qld); Native Title (South Australia) Act 1994 (SA); Native Title (Tasmania) Act 1994 (Tas); Native Title Act 1994 (ACT).; Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA);Validation (Native Title) Act 1994 (NT). 11A The Native Title Act 1993, s 15, specified the extinguishing effect (if any) on native title of “past acts”, which were defined in s 228(1) to mean acts that would have been valid “if the native title did not exist”. Accordingly acts prior to the commencement of the RDA were not “past acts”, and the common law determined their effect on native title. 12 In Western Australia v Ward (2002) 213 CLR 1 at [16], Gleeson CJ, Gaudron, Gummow and Hayne JJ stated that a claim under the Native Title Act is a claim for rights as defined by s.223: “No doubt account may be taken of what was decided and what was said in [Mabo] when considering the meaning and effect of the NTA. This especially is so when it is recognised that paras (a) and (b) of s 223(1) plainly are based on what was said by Brennan J in Mabo.” 13 Senator Minchin, Parliamentary Debates (Senate Hansard), 2 December 1997 at 10171: “I repeat that our Act preserves the fact of common law; who holds native title, what it consists of, is entirely a matter for the courts of Australia. It is a common law right.” 14 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 442 [Yorta] at [76] per Gleeson CJ, Gummow and Hayne JJ: “The Native Title Act when read as a whole, does not seek to create some new species of right or interest in relation to land or waters which it then calls native title. Rather, …those rights and interests… with which the Act deals … are rights and interests finding their origin in traditional law and custom, not the Act”. It is not possible in this thesis to explore the proposition that common law and statutory native title are different. 15 Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124 per Lockhart, Lee and Sackville JJ: the “legislation is clearly remedial in character and thus should be construed beneficially”. Commonwealth v Yarmirr (2001) 208 CLR 1 [Yarmirr] at [124] per McHugh J (diss): The Act should “be read as having a legislative purpose of … ameliorating the “national legacy of unutterable shame”…Where the Act is capable of a construction that would ameliorate any of those injustices … it should be given that construction”. Pearce DC and Geddes RS, Statutory Interpretation in Australia (6 ed, Sydney: Butterworths, 2001) [9.2]-[9.4]: beneficial legislation “cannot be construed in a narrow or pedantic manner” [9.2] and ambiguities are to be resolved in favour of the beneficial purpose. However, not all the provisions in the Act are remedial, particularly provisions for the validation of past acts: Re Nyungah People (1996) 132 FCR 54. 16 Gumana v Northern Territory (No 2) [2005] FCA 1425 at [40]. Similarly Mabo at 217 (final order), Sampi v Western Australia [2005] FCA 777 at [10]; Ngalakan Peoples v Northern Territory (2002) unreported – reasons set out at [2001] FCA 923 at [143]; Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group v Northern Territory [2004] FCA 472 (Town of Hatches Creek), affirmed

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Mabo held by a majority 17 that the extinguishment of native title did not give rise to a right to compensation.

The issue before the High Court in Wik v Queensland (1996) 187 CLR 1 [ Wik ] was whether the pastoral leases in question granted “exclusive possession” over land, and if so, “did the grant of the pastoral lease necessarily extinguish all incidents of Aboriginal title”? 18 The Wik majority held that native title rights were extinguished by reference to an inconsistency of rights test. 19 Wik implied that native title was to be seen as a bundle of rights to use and control land, rather than a title to land. The Wik Amendments, 20 the Commonwealth Parliament's response to Wik, provided that certain “previous exclusive possession acts”, which included acts occurring before the commencement of the RDA , completely extinguished native title, and other validated acts extinguished native title rights by reference to the inconsistency of rights test. The Wik Amendments delivered “bucket loads” 21 of extinguishment, providing for the extinguishment of native title up to 23 December 1996 (the date of the Wik decision), but did not change the common law concept of native title. 22

The proposition that, by reference to the inconsistency of rights test, the grant of an estate in fee simple wholly extinguished native title was confirmed in Fejo v Northern Territory (1998) 195 CLR 96 [ Fejo ]. In Western Australia v Ward (2002) 213 CLR 1 [ Ward ], the High Court considered the effect of various statutory leases granted under general Crown lands legislation on native title, and confirmed that native title was to be conceptualised as a “bundle of rights” 23 to land, of which the right to exclusive possession may be one, and that there was a doctrine of partial extinguishment of native title, by which the grant of rights under these leases extinguished native title rights to the extent of the inconsistency.

Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [79]-[80]; Griffiths v Northern Territory [2007] FCAFC 178 at [6]. 17 Mason CJ and McHugh J (Brennan J and Dawson J agreeing); Deane and Gaudron JJ and Toohey J contra. 18 Wik at 261. 19 Wik postscript per Toohey J at 133. 20 The Native Title Amendment Act 1998 (Cwth) substituted a new s.4: “This Act also confirms that many acts done before the High Court's judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non-exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency.” 21 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1997 (Canberra: HREOC 1997) at 36; Bartlett RH, “Is Equality Too Hard for Australia?” (1997) 20 UNSWLJ 492. 22 Native Title Act Case at 452 per Mason CJ, Brennan, Dean, Toohey, Gaudron and McHugh JJ: “The common law concept of ‘native title’ is incorporated into the definition contained in s.223(1)”. 23 Ward at [76] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

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§1.3 The denial of full respect

As a legal concept, “property” is defined as the legal relationship between people with respect to things, 24 and the word property will be used in this sense. The law treats the word “right” as having a particular meaning, and the generally accepted analysis of Hohfeld’s eight jural conceptions – rights, duties, privileges/liberties, no-rights, powers, liabilities, immunities, and disabilities, 25 is adopted here.

The first basis on which Australian law recognises the right of native title, consistently with comparative jurisprudence, is one of full respect for pre- existing rights to land. As a common law right, native title enjoys the full and active protection of the common law. The second basis on which Australian law recognises native title is that the common law principle of equality before the law dictates that there be a doctrine of native title, respecting pre-existing property rights.

Comparative jurisprudence treats native title as a property right akin to ownership, and accords full respect to native title as property, holding that it can be extinguished only by a clear and plain act presumed to be on the basis of the payment of just compensation.

The unique Australian conceptualisation of native title, as the translation of communal, group and individual rights and interests under traditional laws and customs into a bundle of common law rights, is one that has undermined full respect for native title , seeing native title as a bundle of undifferentiated rights, rather than a true title to land. In recognizing native title rights as common law rights, Australian jurisprudence has conceptualised them as fragile and lesser, when compared to other common law rights. These two strands of reasoning lay a basis for the unique Australian law of extinguishment of native title.

The bundle of rights approach implies that Aboriginal communities never really owned the land. They possessed merely an undifferentiated bundle of individually extinguishable rights, and the Crown did not, therefore, have to turn its mind to acquiring ownership of the land before it proceeded to grant interests in that land. Even so, these native title rights were property rights, protected by common law or statutory remedies against infringement.

The Australian law of extinguishment of native title has been supported by a confusion concerning the way the doctrine of tenure applies to protect interests in land. The law fails to explain how the Crown came to acquire a better title to land than that possessed by native title holders, or how the Crown was able to grant interests in land against native title holders.

24 Lawson FH and Rudden B, The Law of Property (2ed) (Oxford: OUP 1982) at 1. 25 Hohfeld WN, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23 Yale LJ 16; Hohfeld WN, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale LJ 710.

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The legal reasoning which, in Australia, denies native title the full respect accorded it in the comparative jurisprudence, and denies native title the full respect accorded other property rights in Australian jurisprudence, departs from legal principles with respect to the recognition and protection of property. Australian jurisprudence focuses on a difference between native title and other property to deny equality of treatment to native title property rights. The Australian law of native title bases itself on the need, not merely to validate the grant of interests in land, but validate them in a way that deprives native title of its meaning as a form of title, property or indeed right. Pragmatism has been manifested in the creation of new legal doctrines not derived from existing legal principle.

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§1.4 Structure of Thesis

The pre-existing indigenous right to land, as translated into a right under domestic law, is called native title in Australia, Aboriginal title in Canada, Indian title in the USA, and Maori title or native title in New Zealand. This right will be called “native title” when not confined to the jurisprudence of one jurisdiction.

Chapter 2 - Comparative jurisprudence: native title as a property right

Chapter 2 examines the comparative jurisprudence of native title. That jurisprudence shows that native title is recognised as a communal property right to land, akin to ownership. It is a true form of title. As native title is a legal right and a species of property, the comparative jurisprudence holds that native title can be extinguished only by clear and plain executive or legislative act presumed to be on the payment of compensation. Accordingly, native title cannot be extinguished by the grant an estate in fee simple under general legislation.

What Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title

Chapter 3 argues that full respect is the standard by which to assess how Australian law recognises native title as a property right.

In stating why the common law recognises native title, Australian and comparative jurisprudence hold that native title is recognised because the acquisition of Crown sovereignty was on the basis that pre-existing rights to land would be fully respected. Further the introduction of English law also rests on the basis that common law and legislation fully respect native title as a property right.

In Australian jurisprudence the recognition of native title also rests on two express propositions with respect to equality before the law. Firstly, Mabo held that the doctrine of absolute Crown ownership of land was inconsistent with the common law principle of equality before the law, and did not form part of the law of Australia. Therefore, by reason of a common law doctrine of equality, the Crown in the Australian colonies did not acquire absolute ownership of the land by the assertion of sovereignty. Secondly, Mabo 1 held that to extinguish native title was to extinguish a property right, a right protected by the guarantee of equality before the law under the RDA .

Chapter 4 - The denial of full respect in the conceptualisation of native title

Chapter 4 argues that full respect for native title as a form of title and right, has been denied in the way Australian jurisprudence has conceptualised native title.

Full respect for rights and interests under traditional laws and customs dictates the recognition by Australian law of all such rights and interests that can be meaningfully expressed in common law terms. Australian jurisprudence adopts

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the language of full respect in the perception of the traditional rights that are recognized as native title. However, Australian jurisprudence holds that native title rights must exist in an “intersection” between the traditional normative system and the Australian legal system, and must be acceptable to Australian law by reason of various principles limiting the recognition of rights. The language of difference has been used in the process of translating traditional rights into native title in a way that not only affirms the primacy of the common law, but contextualises native title as a lesser or fragile form of common law right.

As a communal right of exclusionary control, native title enters Australian law as a true form of ownership and title. The conceptual tool of a bundle of rights has fragmented these notions of ownership or title. Even so, native title is a series of property rights to land. However, the bundle of rights conception, as applied in Australian jurisprudence, has compromised native title as a form of ownership and title.

Chapter 5 – Radical title does not affect the capacity of native title holders to assert property rights

Chapter 5 distinguishes between “radical title” and conceptions of property and ownership, and explains what it means to say that native title is a “burden” on the “radical title of the Crown”. There is a confusion about the relationship between radical title and allodial title, and between radical title and native title, implying that radical title is a proprietary interest in land competing with or limiting native title. When properly understood, radical title is consistent with full respect for native title as ownership and property.

Chapter 6 - The denial of full respect in the extinguishment of native title

How then has the Crown acquired ownership or indeed any proprietary interests in land, or extinguished native title? As a property right, native title is protected by appropriate legal remedies against physical interference, yet when it comes to interference by executive or legislative act, native title is treated differently from all other property rights. Native title can be extinguished by a mere “side-wind” and without the payment of compensation. Property rights can be taken away only without compensation if a clear and plain legislative intention to this effect is manifested, and no such intention has been manifested in Australian legislation.

Chapter 6 argues that this difference of treatment is explained by labelling native title a “fragile” right. However, the description of fragile is not the conclusion of a process of reasoning, but the a priori starting point for reasoning in which this fragile right cannot compete on an equal footing with other non-native title proprietary rights. The weaker native title right cannot compete with the stronger rights contained in the grant of an estate in fee simple. However, grants under Crown lands legislation have created rights in land already owned by persons other than the Crown. In justifying how rights under Crown grant prevail over

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inconsistent native title rights, or how native title can be extinguished in a way that other property rights cannot, Australian jurisprudence, has hedged the protection of native title by pragmatic concerns which cannot be supported by legal principle. Australian jurisprudence has also created a new doctrine by bare assertion: the presumption of a right to compensation for the taking of property rights does not apply to native title.

Chapter 7 - An overall assessment of the denial of full respect

A jurisprudence of rights recognition focuses on how native title is recognized and protected as a common law right. A jurisprudence of difference, based on according priority to interests under Crown grants, looks at difference, and regards difference as an indication of lesser. Thus, Australian jurisprudence, starts with the question: how has the Crown grant affected native title, not how has the common law right of native title burdened the Crown’s ability to grant interests in land? The common law as a jurisprudence of rights recognition and rights protection has been replaced by a jurisprudence of difference.

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CHAPTER 2 - COMPARATIVE JURISPRUDENCE: NATIVE TITLE AS A PROPERTY RIGHT ______

The English law introduced into British settler colonies, comparable to Australia, namely Canada, New Zealand and the American Colonies/USA, recognised that indigenous communities had a legal right to their land. English law was modified to the extent necessary to recognize that right, as native title, even though native title may not have existed in the law of England. 1

§2.1 Crown sovereignty, Aboriginal sovereignty and native title

In the non-US comparative jurisprudence, English law, from the moment of its introduction, displaced Aboriginal law as a source of law and recognized native title as a common law property right. In US jurisprudence both paramount Crown sovereignty and continuing limited Indian sovereignty were recognized over the same land. As well, Indian title was recognized as a right under domestic law.

§2.2 Native title as property

Comparative jurisprudence recognises native title as a communal property right to land, a form of title akin to ownership. It follows that the principles of the common law with respect to the recognition and protection of property apply to native title: native title cannot be taken away otherwise than by a clear and plain legislative act, or legislatively authorised executive act, and property is presumed to be taken on the basis of payment of just compensation. The normal method of acquiring property rights, acquisition by purchase or legislative acquisition without consent, were applied to native title. The Crown or government was then able to grant possessory interests in land out of its own proprietary interests.

§2.3 Aboriginal rights

Comparative jurisprudence recognizes a series of Aboriginal rights, in addition to native title. These rights include traditional land-use rights where no right of ownership, exclusive possession or control is claimed. The separation of Aboriginal title and Aboriginal rights highlights the conception of Aboriginal title as a true form of title to land.

1 It is impossible to determine whether the law of England immediately after the Norman conquest contained in fact or embryo, a doctrine that pre-existing rights to land were to be respected. Historical opinion is that the great majority of English landholders were left in undisturbed possession of their land: §6.1(c) Acquisition of allodial title .

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§2.1 Crown sovereignty, Aboriginal sovereignty and native title

The idea of sovereignty has several meanings, but in the legal context, sovereignty is the possession of ultimate political and legal authority within the limits of the nation. 2 The proposition that the imperial acquisition of sovereignty over colonial lands, whether by settlement, treaty of cession or act of conquest, did not extinguish native title, is universally recognised, 3 because sovereign rights to land and property rights to land are distinct. Territory is subject to a right of sovereignty ( imperium ), while land is subject to a right of property (dominium ). 4 Not only is extinguishment of native title not dictated by the acquisition of sovereignty, but Chapter 3 argues that the very basis on which the assertion of sovereignty over settled colonies took place was that of full respect for pre-existing rights to land, as true legal rights under introduced English law.

Continuing Aboriginal sovereignty is not recognised in New Zealand, Canadian 5 or Australian 6 jurisprudence. While the Maori were recognised as sovereign, 7 the Treaty of Waitangi,8 signed by many but not all Maori “tribes”, 9 ceded Maori sovereignty to the British Crown. 10 US jurisprudence is unique in recognizing a continuing Indian sovereignty. 11

2 Mabo at 36 per Brennan J: “sovereignty dictates that a state has exclusive sovereignty over all persons, citizens or aliens, and all property, real and personal, within its own territory”. Ward at [91] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “The assertion of sovereignty marked the imposition of a new source of authority over the land” 3 §3.1 Acquisition of sovereignty is based on full respect for pre-existing rights. 4 Salmond J, Jurisprudence (7 ed, London: Stevens and Haynes, 1924) at 554 (see text accompanying Chapter 5 footnote 6) cited in Mabo at 44 per Brennan J. 5 R v Sparrow [1990] 1 SCR 1075 [Sparrow] at 1103: “It is worth recalling that while British policy toward the native population was based on respect for their right to occupy their traditional lands…there was from the outset never any doubt that sovereignty and legislative power …vest in the Crown.” 6 Mabo at 37-38 and 61 per Brennan J; Walker v New South Wales (1994) 182 CLR 45 at 48-50. 7 The “Instructions …to Captain Hobson…as Lieutenant Governor of New Zealand” of 14 August 1839 (CO 209/4), extracted in McIntyre WD and Gardner WJ (eds), Speeches and Documents on New Zealand History (Oxford: OUP, 1971) at 281: “I have already stated that we acknowledge New Zealand as a Sovereign and independant (sic) State …Her Majesty's Gov[ernmen]t have resolved to authorise you to treat with the Aborigines of New Zealand for the recognition of Her Majesty's Sovereign authority over the whole or any parts of those Islands which they may be willing to place under Her Majesty's Dominion.” 8 The treaty is scheduled to the Treaty of Waitangi Act 1975 (NZ). 9 In the early 1800s there existed some 50 iwi in New Zealand, of which 36 signed the Treaty. The iwi was the largest political unit in Maori society, with a common leadership: Walker R, “Maori Sovereignty, Colonial and Post-colonial Discourses”, in Havemann P (ed), Indigenous Peoples’ Rights in Australia, Canada, and New Zealand (Auckland Oxford University Press 1999) at 108-123. 10 New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 at 670, 671 and 690. There are key differences between the Maori and English versions of the Treaty. The English text states that the Maori Chiefs cede “sovereignty”, while under the Maori text (cited in New Zealand Maori Council v Attorney General [1994] 1 NZLR 513 (PC)) states only “the government” was granted. 11 §2.2(a) (iii) US: Indian title.

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§2.2 Native title as property

When colonial settlers arrived in the new world, the assumption that the people in peaceful occupation of the land were its owners would have been so natural as to need no justification. The contrary had to be established. 12 Australian, New Zealand Canadian and US jurisprudence hold that in order to be a legal right against the whole world, native title need not be recognized by executive or legislative act.

(a) Native title as a property right akin to ownership

According to Blackstone, citing Coke, under English law: “A title … is the means whereby the owner of lands hath the just possession of his property.” 13 Ownership exists when a person holds a property right, or bundle of property rights, against the whole world, sufficient to be called “ownership”; the paradigm right being the right to exclude. 14 The common law tends not to distinguish between ownership/property as a “concept” and ownership/property as a “label”. 15

(i) New Zealand: Maori title

Article 2 of the Treaty of Waitangi 1840 recognised a Maori right to enjoy “exclusive and undisturbed possession of their Lands.” 16

Maori title as a property right

New Zealand law recognises a Maori title of “possession and occupation” 17 established under Maori “customs and usages”. 18 Maori title is a right against the

12 The Spanish jurist de Victoria, Nys E (ed), F de Victoria, De Indis et de Jure Belli Relectiones [1557] (Washington, DC: Carnegie Institute, 1917): “we have the fact that the people in question were in peaceable possession of their goods, both publicly and privately. Therefore, unless the contrary is shown, they must be treated as owners and not be disturbed in their possession unless cause be shown.” (at 120) However good cause to the contrary can be shown from various reasons, the first of which is: “First: Irrational creatures …can not have a right. ..The proof of this assumption is that he who kept off a wolf or a lion from its prey …would not do it a wrong…The proof of the assumption is that they may be killed with impunity” (at 126). 13 Blackstone W, Commentaries on the Laws of England (Facsimile of First Edition published in 1765) (Chicago: U Chicago Press, 1979) [hereafter Blackstone Commentaries], Vol 1, at 195: “A title is thus defined by Sir Edward Coke, titulus est justa causa possidendi id quod nostrum est; or, it is the means whereby the owner of lands has the just possession of his property.” Blackstone is using “property” to designate the thing over which property rights exist. 14 §4.4 (c) (iv) The right to exclude: the primary right in the bundle. 15 Honoré A, “Ownership” in Honoré A, Making Laws Bind (Oxford: Clarendon Press, 1987) 161 at 161. 16 The English version of Article 2 states: “Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties”. 17 In Nireaha Tamaki v Baker [1901] AC 561 (PC) [Nireaha Tamaki] at 578: “the “rightful possession and occupation of the natives” until extinguished in accordance with the law.”

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whole world. 19 Maori title “is a residual category of ownership not dependent upon title derived from the Crown”, 20 and a form of title out of which common law leases could be granted to European settlers. 21

Maori title as a communal right

Maori lands are held in common by all members of the group:

Mäori …customary tenure… is generally agreed to be a “collective” one, in that the land belonged to all members of a defined group (usually a hapü). No individual interests in the land were discernible, though the group might allocate particular functions and productive activities to individuals as their right. 22

The Wi Parata years 1877-1986: retreat from recognition

A restrictive approach to Maori title began with the decision of Wi Parata v Bishop of Wellington [ Wi Parata ] which denied legal effect to Maori rights unless recognised by statute. 23 The restrictive approach was rejected by the Privy Council in appeals from New Zealand, but continued to be the law recognised by New Zealand courts until overruled in 1986. 24

18 Nireaha Tamaki, 577. Similarly Re The Lundon and Whitaker Claims Act 1871 (1872) 2 NZCA 41 at 49: “established Native custom.” 19 Nireaha Tamaki at 578 “[I]f the appellant can succeed in proving that he and the members of his tribe are in possession and occupation of the lands in dispute under a native title … he can maintain this action to restrain an unauthorised invasion of his title.” 20 Attorney-General v Ngati Apa [2003] 3 NZLR 643 [Ngati Apa] at [40] per Elias CJ: “Maori customary property is a residual category of ownership not dependent upon title derived from the Crown.” and at [41]: “customary land is property recognised by New Zealand law which is not owned by the Crown.” At [37]: “From the beginning of Crown colony government, it was accepted that the entire country was owned by Maori according to their customs and that until sold land continued to belong to them” At [38]: “The land became subject to the disposing power of the Crown by Crown grant only once customary ownership had been lawfully extinguished”. 21 Waitangi Tribunal, Ngai Tahu Land Report (Wellington: GP Pubs, 1991) 3 vols, notes that until the Native Land Purchasing Ordinance 1846 (NZ) made it illegal to lease Maori land, the practice had been common on Ngai Tahu land. As a result of the Ordinance “Ngai Tahu were prevented from gaining an income by leasing their land to private individuals while retaining title to such lands” [5.8.1]. After 1846 Ngai Tahu could only sell their land to the Crown. Similar direct leases existed in the Wairarapa and Hawke's Bay: Waitangi Tribunal, Mohaka River Report (Wellington: GP Pubs, 1992) at [3.2]. In the Waitangi Tribunal (Rangahaua Whanui District Reports Series), District 11b: Hawke’s Bay by D Cowie (Wellington: GP Pubs, 1996) at [6.5.3] noted that even after the Ordinance “informal and ‘illegal’ leases [were] entered into by European entrepreneurs.” 22 Law Commission, Study Paper 9: Mäori Custom and Values in New Zealand Law (Wellington: Law Commission, 2001) at [264]. 23 In Wi Parata v The Bishop of Wellington [1877] 3 NZ Jur 72 ruled that the Maori rights confirmed in the Treaty were unenforceable against the Crown. Similarly Re Ninety Mile Beach [1963] NZLR 461 at 468: the Crown can “disregard the Native title to any lands in New Zealand”. 24 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680. Wi Parata is now “discredited”: Ngati Apa at [13] per Elias CJ. In McRitchie v Taranaki Fish and Game Council [1999] 2 NZLR 139 (CA) at 158, Thomas J stated: Te Weehi “reversed the restrictive approach of earlier Courts which the judiciary now bear with ignominy and discomfiture.”

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(ii) Canada: Aboriginal title

Aboriginal title as a property right

Following the cession of North American territory from France under the Treaty of Paris in 1763, 25 the Royal Proclamation of 1763 26 re-organised the Crown’s administration of the American Colonies and stated: “the several Nations or Tribes of Indians ... should not be molested or disturbed in the possession of such parts of our Dominions and Territories as, not having been ceded to, or purchased by us , are reserved to them” (emphasis added) .27 Notwithstanding that the passage in italics could be interpreted as recognizing Aboriginal ownership of the land, and notwithstanding a history of acquisition of land by treaty, 28 Canadian jurisprudence, culminating in the Privy Council’s decision in St Catherine's, paid primary attention to the phrase “are reserved to them” to interpret the Proclamation as a grant of Aboriginal title and waiver of any right to deal with the land until Aboriginal title was extinguished. 29 It was held that the imperial Crown acquired both sovereignty and property by cession from France, and Indian title “was a personal and usufructuary right, dependent upon the good will of the Sovereign”, 30 a significant departure from the US and New Zealand jurisprudence of the time. 31

The implied grant approach was rejected in Calder 32 and Guerin 33 where Dickson J described “aboriginal title as a legal right derived from the Indians’ historic

25 Treaty of Paris, 10 February 1763, concluding the Franco-British conflicts of the Seven Years' War (“French and Indian War” in North America) by which all of French North America east of the Mississippi River (including Canada) was ceded to Britain. 26 The Royal Proclamation of 7 October 1763, RSC 1985, App II, No 1, organized the territories acquired under the Treaty, and reserved two types of land to the Indians: land outside colonial territorial limits and settlements authorized by the Crown inside such limits. 27 The Proclamation reads: “And whereas it is just and reasonable, .. that the several Nations or Tribes of Indians … who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds … no Governor [shall] presume, to … pass Patents for any Lands .. which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.” The actual area covered by the Proclamation is a matter of dispute: Slattery B, “The Land Rights of Indigenous Canadian Peoples” (doctoral dissertation) reprinted (Saskatoon: U Saskatchewan Native Law Centre, 1979) [Slattery Thesis] 175-190. 28 A series of land surrender agreements from 1725 on between First Nations and the Crown eventually covered much of Canada: see footnote 93. 29 St Catherine's Milling and Lumber Co v Queen (1887) 13 SCR 577 at 599-600; Church v Fenton (1878) 28 Upper Canada Common Pleas 384 at 399: “Her Majesty was seised of the lands therein mentioned in right of her Crown, but by a usage which never had been departed from the Crown had imposed upon itself this restriction, that it never would exercise its right to sell or lease those lands, or any part of them, until released or surrendered by the Indians, for the purpose thereby of extinguishing what was called the Indian title.”. 30 St Catherine's Milling and Lumber Co v Queen (1888) 14 AC 46 at 54-55. 31 The Marshall trilogy (footnote 48) and Symonds (footnote 87) were cited to the Privy Council. 32 Calder v Attorney-General of British Columbia [1973] SCR 313, where six of the seven judges ruled on the issue: 322-23 per Judson J for majority, 390 per Hall J (diss) for minority. 33 Guerin v R [1984] 2 SCR 335.

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occupation and possession of their tribal lands”. 34 Traditional laws and customs may be relevant to establish “proof of occupancy” 35 but Aboriginal title may be established by proof of factual occupancy alone. When the implied grant approach was rejected, references to Aboriginal title as a personal right were re- interpreted as references to Aboriginal title being alienable only to the Crown. 36 Aboriginal title became first a “beneficial” 37 interest in land, then a legal right 38 and finally “a sui generis proprietary interest” 39 in land.

Aboriginal title “is a right to the land itself”, 40 a “right of exclusive use and occupation”. 41 While Canadian jurisprudence has described Aboriginal title as “ownership”, 42 it distinguishes Aboriginal title from “fee simple ownership”. 43 Aboriginal title is a right to use land for any purpose and includes ownership of minerals, 44 and thus it has an “inescapably economic aspect”. 45 Aboriginal title is a right against the whole world. 46

Aboriginal title as a communal right

The community is central to a conception of Aboriginal title:

34 Guerin at 382 per Dickson J. Similarly Delgamuukw v British Columbia [1997] 3 SCR 1010 [Delgamuukw] at [143] per Lamer CJ : “In order to make out a claim for Aboriginal title, the Aboriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre- sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.” 35 Delgamuukw at [112] per Lamer CJ: “the source of Aboriginal title appears to be grounded both in the common law and in the Aboriginal perspective on land; the latter includes, but is not limited to, their systems of law. It follows that both should be taken into account in establishing the proof of occupancy.” 36 See Delgamuukw at [113]: footnote 39. 37 Guerin at 376 per Dickson J: “It appears to me that there is no real conflict between the cases which characterise Indian title as a beneficial interest of some sort, and those which characterise it a personal usufructuary right.” 38 Guerin at 382 per Dickson J. 39 R v Van der Peet [1996] 2 SCR 507 at [115] per L'Heureux-Dubé J (diss): a “sui generis proprietary interest which gives native people the right to occupy and use the land at their own discretion,”; similarly Delgamuukw at [125] per Lamer CJ: “it is a sui generis interest that is distinct from “normal” proprietary interests, most notably fee simple.” 40 Delgamuukw at [138] per Lamer CJ: “What aboriginal title confers is the right to the land itself.” 41 Delgamuukw at [166] per Lamer CJ: an “exclusive use and occupation of land” (emphasis in original). 42 R v Sioui [1990] 1 SCR 1025 at 1055 per Lamer CJ : “The British Crown recognized that the Indians had certain ownership rights over their land, it sought to establish trade with them which would rise above the level of exploitation and give them a fair return.” 43 Delgamuukw at [190] per Lamer CJ: “This sui generis interest is not equated with fee simple ownership”; at [111]: “aboriginal title as a sui generis interest in land … is distinct from a fee simple”; similarly at [125] see footnote 39, and at [156]. 44 Delgamuukw at [117], and at [122] per Lamer CJ: “The …content of Aboriginal title is not restricted to practices, customs and traditions which are integral to distinctive Aboriginal cultures. … Aboriginal title also encompass mineral rights, and lands held pursuant to Aboriginal title should be capable of exploitation in the same way, which is certainly not a traditional use for those lands. … Aboriginal title permits the development of oil and gas reserves.” 45 Delgamuukw at [169] per Lamer CJ. 46 Guerin at 376 per Dickson J.

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A further dimension of aboriginal title is the fact that it is held communally . Aboriginal title cannot be held by individual Aboriginal persons; it is a collective right to land held by all members of an Aboriginal nation. Decisions with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property rights. 47 (emphasis in original)

(iii) US: Indian title

Indian title as a sovereign right

The cases of the Marshal trilogy ( Johnson v McIntosh , Cherokee Nation v Georgia and Worcester v Georgia )48 recognised Indian communities as “domestic dependant nations” 49 with continuing rights of limited sovereignty. 50 The recognition of a continuing Indian sovereignty carried with it the recognition of Indian law as “law”, applying to all persons in Indian territory.51 Indian law as “law” is a fundamental doctrine of US jurisprudence. 52 The surrender of land subject to Indian title is the surrender of sovereign rights over that land, unless US legislation provides otherwise. Federal sovereignty and law is paramount, and Congress has subjected Indian nations to substantial bodies of State law. 53

Indian title as a property right

Johnson v McIntosh held that “discovery gave exclusive title” 54 and this “title” to territory included a power to grant interests in land, subject to “the Indian right

47 Delgamuukw at [115] per Lamer CJ. 48 Marshall CJ delivered the opinion of the court in each case: Johnson v McIntosh 21 US 543 (1823), Cherokee Nation v Georgia 30 US 1 (1831) (Thompson J, joined by Story J, dissenting) and Worcester v Georgia 31 US 350 (1832) (Baldwin J dissenting). 49 Cherokee Nation v Georgia at 17. 50 Worcester v Georgia at 559: “The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil.” United States v Wheeler 435 US 313, 326 (1978): “Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain a separate people, with the power of regulating their internal and social relations. The powers of Indian tribes are, in general, 'inherent powers of a limited sovereignty which has never been extinguished .'“ (Emphasis in original). 51 Williams v Lee 358 US 217 (1959) held that actions by a non-Indian against reservation Indians was within the exclusive jurisdiction of the Navajo courts: “The cases in this Court have consistently guarded the authority of Indian governments over their reservations”. Montana v United States 450 US 544, 566 (1981), Indian nations retain jurisdiction over the conduct of non- members when “that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe”. 52 Worcester v Georgia, 562: “The Cherokee Nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of Congress.” 53 There has been a diminution of the concept of Indian sovereignty since the Marshall trilogy: Wilkins D, American Indian sovereignty and the US Supreme Court (Austin: U Texas Press, 1997). 54 Johnson v McIntosh at 574.

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of occupancy”. 55 In Fletcher v Peck 56 and Johnson v McIntosh Marshall CJ did not deny that a state might own the land, 57 however, he adopted a different approach in Worcester v Georgia, denying that any property vested in the discoverer:

[T]he King granted charters… They purport, generally, to convey the soil from the Atlantic to the South Sea. ... …They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The Crown could not be understood to grant what the Crown did not affect to claim; nor was it so understood…. these grants asserted a title against Europeans only, and were considered as blank paper so far as the rights of the natives were concerned.58

Worcester v Georgia held that sovereignty respected “pre-existing rights” 59 and Indian nations “retain[ed] their original natural rights, as the undisputed possessors of the soil”.60 Indian title was “complete ownership” 61 and “Indians …. were considered as owing them [Indian lands] by a perpetual right of possession … [a right] as sacred as the fee simple”. 62 Indian title includes all

55 Johnson v McIntosh at 573: the federal government “claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.” 56 In Fletcher v Peck 10 US 87 (1810) Johnson J (diss) held at 147 that Indian nations, whose lands had not been acquired by conquest or purchase were “absolute proprietors of their soil”, and this excluded the seisin in fee of another. The US had “nothing more than what was assumed at the first settlement of the country, to wit, a right of conquest or of purchase, exclusively of all competitors”. Marshall CJ at 142-43 did not accept this “the nature of the Indian title … is not such as to be … repugnant to seisin in fee on the part of the state”, similarly his view in Johnson v McIntosh at 592. 57 It has always been accepted that Johnson v McIntosh was a case contrived for the purpose of allowing a so minded Supreme Court to validate titles granted by the State of Virginia, and this has been demonstrated by Robertson LG, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (Oxford: OUP, 2005), which notes at 116 that Marshall CJ assumed, following the Nonintercourse Act, that he was developing a principle for an historical anomaly, ie grants of land prior to surrender of Indian title, that “would never recur”. 58 Worcester v Georgia at 544-545. These Charters are set out and discussed in Lester GS, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (doctoral thesis, Toronto 1981) [Lester] at 370-428. 59 Worcester v Georgia at 543: “It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered which annulled the pre-existing rights of its ancient possessors.” 60 Worcester v Georgia at 559: “retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial”. 61 United States v Tillamooks 392 US 40, 46 (1946): “As against any but the sovereign, original Indian title was accorded the protection of complete ownership but it was vulnerable to affirmative action by the sovereign”. Holden v Joy 84 US 211, 244 (1872): “Their title was absolute, subject only to the pre-emptive right of purchase acquired by the United States…” See also footnote 64. 62 Mitchel v US 34 US 711, 745 (1835): “Indians were protected in the possession of the lands they occupied, and were considered as owning them by a perpetual right of possession in the tribe”; and at 746: Indian property rights were “as sacred as the fee simple of whites”.

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elements that make the land “valuable”, 63 and therefore includes rights to minerals, water rights and timber rights. 64 Indian title is a right to use the land as the occupants see fit.65 Indian title is proven by historic “exclusive” 66 occupation of land, and can be protected by an action of ejectment 67 or damages for trespass. 68 Domestic law protects Indian title as it protects any other right to property. 69

Indian title as a communal right

Beginning with Johnson v McIntosh it became accepted that “the Indians never had any idea of individual property in lands”. 70 The individual Indian has no title or right in tribal property, 71 Indian title is a perpetual right “in the tribe”. 72

Unrecognized Indian title as a permissive occupancy

In 1946, the Supreme Court majority in Tillamooks 73 affirmed that Indian title, whether or not recognised by a formal act of the federal government, was a right to property protected against taking without compensation under the US

63 United States v Klamath and Moadoc Tribes of Indians 304 US 119, 123 (1938). 64 United States v Shoshone Tribe 304 US 111, 116 (1938) “for all practical purposes, the tribe owned the land. …The right of perpetual and exclusive occupancy of the land is not less valuable than full title in fee. .. Minerals and standing timber are constituent elements of the land itself.” In Choteau v Molony 16 How 203 (1853) the Supreme Court recognised Indian title to subsurface rights. 65 Johnson v McIntosh at 573-74: “the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion”. 66 Guardian of the Tribe of Hualpai v Sante Fe Pacific RRCo 314 US 339 (1941) [Sante Fe] at 345-47 “If it were established as a fact that the lands in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted definable territory occupied exclusively by the Walapais (as distinguished from lands wandered over by many tribes), then the Walapais had “Indian title”. 67 Marsh v Brooks 49 US 223, 232 (1850): “That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question. This is the result of the decision in Johnson v McIntosh.” 68 In Sante Fe, 347 and Onieda I, 667-669 damages for trespass on Indian land were awarded. 69 Lee v Glover 8 NYR 189, 189 (SCNY, 1828): “if it be Indian property in land, it is protected by our constitution and laws”; Leavenworth, Lawrence, & Galveston RR Co v United States 92 US 733, 742 (1875) “This perpetual right of occupancy, with the correlative obligation of the government to enforce it”. 70 Johnson v McIntosh at 568 71 Choate v Trapp 224 US 665, 671 (1912): “The individual Indian had no title or enforceable right in the tribal property.” 72 Mitchel at 745: “a perpetual right of possession in the tribe”. In United States v Dann 873 F 2d 1189, 1196 (1989) the Court of Appeals discussed individual title and stated: “Individual aboriginal title is by no means a well-defined concept. The common view of aboriginal title is that it is held by tribes. See, e.g., [Oneida II]. ….There is no theoretical reason why individuals could not establish aboriginal title in much the same manner that a tribe does. An individual might be able to show that his or her lineal ancestors held and occupied, as individuals, a particular tract of land, to the exclusion of all others, from time immemorial, and that this title had never been extinguished….Whether any such individual aboriginal title has existed or could exist, we need not decide, for it is clear that the Danns make no such individual claim.” 73 United States v Tillamooks 392 US 40 (1946) [Tillamooks] Vinson CJ, Frankfurter, Douglas, and Murphy JJ; Reed J (Rutledge and Burton JJ agreeing) dissented at 58: “Indians who continued to occupy their Aboriginal homes, without definite recognition of their right to do so are like paleface squatters.”

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Constitution. 74 There was thus no legal significance in distinguishing between Indian title that had been recognized by formal act of the federal government, and that which had not, as each was a property right protected under the general law and gave rise to a right to compensation on taking. In 1955 the Supreme Court majority in Tee Hit Ton, 75 effectively overruling Tillamooks, created an additional type of Indian title (called unrecognized or common law or original Indian title) and held that the Tee Hit Ton Tlingits of Alaska had this type of title.

It is well settled that in all the States of the Union the tribes who inhabited the lands of the States held claim to such lands after the coming of the white man, under what is sometimes termed original Indian title or permission from the whites to occupy. That description means mere possession not specifically recognized as ownership by Congress. …This is not a property right but amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties but which right of occupancy may be terminated and such lands fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians. 76

Even though this passage posits that unrecognised Indian title is a legal right until terminated, it is a problematic description. The proposition that by not expressly recognising Indian title, the sovereign thereby grants Indians the right to occupy land is logical nonsense, and is contrary to both previous reasoning 77 and fundamental doctrines of US law which categorise Indian treaties as grants of rights by the Indian nations to the US. 78 A distinction between recognised native title and unrecognised native title has been rejected by the jurisprudence of Australia, Canada, New Zealand and the Privy Council. 79 The distinction between recognized and unrecognized title remains significant in US jurisprudence to the extent such distinction provides a basis on which to deny a right to compensation for taking.80

74 Fifth Amendment to the US Constitution provides: “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Tillamooks, 51 per Vinson CJ: “Nor do other cases in this Court lend substance to the dichotomy of "recognized" and "unrecognized" Indian title”. 75 Tee Hit Ton Indians v United States 348 US 272 (1955) [Tee Hit Ton]. Reed J delivered the majority opinion, Vinson CJ, Douglas and Frankfurter JJ dissented. 76 Tee Hit Ton, 279. 77 See footnote 60. Newton N, “Federal Power Over Indians: Its Sources, Scope, and Limitations” (1984) 132 U Pa L Rev 195, 247 – 253 demonstrates a lack of any historical basis for this distinction. 78 The reserved rights doctrine holds that a treaty is not a “grant of rights to the Indians, but a grant of rights from them”: United States v Winans 198 US 371, 381 (1905). Rights not granted are reserved to the Indians. 79 §3.1 Acquisition of sovereignty is based on full respect for pre-existing rights. 80 Tee Hit Ton, at 277-78; Where title is recognized, "compensation must be paid for subsequent taking." However, at 288-89: Unrecognized Indian title "may be extinguished by the Government without compensation." The case did not draw a distinction between valid methods of extinguishment of title. Newton op cit, 249: “The Tee Hit-Ton rule remains relevant today because many tribes live on executive order reservations that have never been recognized by Congress”. The distinction appears to have been rejected in the Oneida Cases: see §2.2(e)(iii) Compensation for the extinguishment of Indian title.

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(b) Extinguishment of native title

Comparative jurisprudence sees native title as a property right akin to ownership, and has developed a jurisprudence consistent with common law principles with respect to the loss of property or ownership rights. The two primary methods recognized are purchase and legislative confiscation. A third policy dictated by the desire to extinguish native title was the allotment system. In New Zealand (by orders of the Native Land Court under various Native Lands Acts ), 81 in the USA 82 and in Canada, 83 legislation was enacted to allow the direct conversion of communal native title into alienable estates in fee simple. In New Zealand some Mäori land was also legislatively confiscated. 84 Situations in which groups have been said to voluntarily abandon claims to land have also been recognized. 85

(i) New Zealand: extinguishment of Maori title

Maori title was extinguished by the purchase of Maori land before European settlement was allowed, under a series of land purchase agreements. 86

Extinguishment by clear and plain intention

In Symonds the New Zealand Supreme Court, relying on US jurisprudence, envisaged extinguishment of Maori title only by purchase: “Native title … cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupier”. 87 The Privy Council on appeal from New Zealand cited this description with approval. 88 However, subsequent jurisprudence has confirmed that legislation specifically extinguishing Maori title, not enacted at the request of relevant Maori, is valid. Maori title can be extinguished only by acting in “strict

81 Native Lands Acts of 1862 and 1865 (NZ). The preamble to the Native Lands Act 1865 (NZ) reads: “Whereas it is expedient to amend and consolidate the laws relating to lands in the Colony which are still subject to Maori proprietary customs and … to encourage the extinction of such proprietary customs and to provide for the conversion of such modes of ownership into titles derived from the Crown.”. 82 Royster J, “The Legacy of Allotment” (1995) 27 Ariz St LJ 1. The process is dated to the General Allotment Act 1887 (US) (Dawes Act) but had begun before this. 83 Amendments to the Indian Act 1876 (Can) in 1888 were based on the Dawes Act. No individual titles were in fact issued. 84 The Land Wars or Maori Rebellion of 1860-65 resulted in the enactment of the New Zealand Settlements Act 1863 (NZ) which permitted the confiscation of large tracts of Maori land from both the rebel and loyal Maori: Litchfield M, “Confiscation of Maori Land” (1985) VUW L Rev 335. 85 Williams v City of Chicago 242 US 434, 437 (1917) was the first case to specifically endorse abandonment, “[W]hen [the Indians' right of occupancy] was abandoned all legal right or interest which both tribe and its members had in the territory came to an end.” 86 Boast R (et al), Mäori Land Law (Wellington: Butterworths, 1999) at 49. 87 R v Symonds (1847) [1840-1932] NZPCC 387 [Symonds] at 390. 88 Nireaha Tamaki at 579.

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compliance” 89 with legislation “unambiguously directed towards” 90 the extinguishment of Maori title.

No principle of extinguishment by grant of tenure

Maori title cannot be extinguished by Crown grant, unless the enabling legislation states that to be the case:

Unless there is legislative authority or provisions such as were found in ss 85 and 86 of the Native Land Act 1909, the Executive cannot, for example, extinguish customary title by granting the land to someone other than the customary owners. If it does so the grantee’s interest is taken subject to the customary title. 91

(ii) Canada extinguishment of Aboriginal title

The Crown in the colonies that became Canada embarked on a series of land purchases to open up land for settlement. 92 Those land surrender agreements covered most of Canada (Treaty Canada). 93

Extinguishment requires clear and plain intention

Following Calder, 94 it was accepted that Aboriginal title could be extinguished only by legislation which evinced a clear and plain intention to extinguish it. 95 Because of the constitutional division of legislative power since 1867, only the Dominion parliament can legislate to extinguish Aboriginal title. 96 Since the

89 Te Runanganui o te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) at 24: “It has been authoritatively said that they [native title rights] cannot be extinguished (at least in times of peace) otherwise than … in strict compliance with the provisions of any relevant statutes”. 90 Nireaha Tamaki at 578: “It is well settled that customary title can be extinguished by the Crown only by means of a deliberate Act authorized by law and unambiguously directed towards that end.” 91 Nireaha Tamaki at 578, similarly Faulkner at 365: “the Executive cannot…extinguish customary title by granting the land to someone other than the customary owners”. 92 For example Treaty of 3 October 1873 (North West Angle Treaty, No 3) provides: “The Saulteaux tribe of the Ojibbeway Indians and all other the Indians inhabiting the district hereinafter described and defined do hereby cede, release, surrender, and yield up to the government of the Dominion of Canada, … all their rights, title and privileges whatsoever to the lands included within the following limits”. See generally Reiter RA, The Law of Canadian Indian Treaties (Edmonton: Juris Analytica, 1995). 93 Most of Canada between Ontario and Alberta was subject to agreement: 94 Calder at 208 per Hall J: “It being a legal right, it could not thereafter be extinguished except by surrender to the Crown or by competent legislative authority.” 95 Sparrow at 1097: “The test of extinguishment to be adopted, in our opinion, is that the Sovereign's intention must be clear and plain if it is to extinguish an Aboriginal right.” 96 Delgamuukw at [173] per Lamer CJ, Cory, McLachlin, and Major JJ: “Since 1871, the exclusive power to legislate in relation to “Indians, and Lands reserved for the Indians” has been vested with the federal government by virtue of s. 91(24) of the Constitution Act 1867 (UK). That head of jurisdiction, in my opinion, encompasses within it the exclusive power to extinguish aboriginal rights, including aboriginal title.”

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recognition of Aboriginal rights, including Aboriginal title, by s.35(1) of the Constitution Act 1982 (Can),97 legislative infringement of Aboriginal title must also satisfy a “justification” test. 98

No principle of extinguishment by grant of tenure

No Supreme Court cases have envisaged the extinguishment of Aboriginal title by grant of tenure, and Canadian jurisprudence holds that the grant of an estate in fee simple over land subject to Aboriginal title is voidable. 99

(iii) USA: extinguishment of Indian title

British settlement of the American Colonies proceeded under a series of treaties with Indian nations providing for the surrender of Indian land. 100 This practice continued after the American Revolution. 101 Such agreements were regarded as the cession of Indian ownership of land. 102 Following the Revolution, the Nonintercourse Act prohibited the original 13 States and all other persons from extinguishing Indian title except under federal treaty. 103 Historically, States of the Union, other than the original 13 States, held no sovereign, legal or proprietary rights over Indian land within their borders, as State law did not apply. 104

97 Section 35(1): “The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.” 98 R v Sparrow [1990] 1 SCR 1075 at 1109, see footnote 120. 99 Chippewas of Sarnia Band v Attorney General of Canada [2001] 1 CNLR 56 (Ont CA) see discussion in text accompanying Chapter 6 footnote 64 . 100 De Puy H, Bibliography of the English Colonial Treaties with the American Indians including a Synopsis of Each Treaty (New York The Lenox Club 1917). 101 Prucha F, American Indian Treaties: The History of a Political Anomaly (Berkeley: U California Press, 1994). There were over 400 treaties and executive agreements between 1778-1902. Cohen F, “Original Indian Title” (1947) 32 Minn L Rev 28 [now Strickland R (ed), Felix Cohen’s Handbook of Federal Indian Law (Charlottesville: The Mitchie Company 1982) at 280]: “practically all of the real estate acquired by the United States since 1776 was purchased not from Napoleon or any other emperor or czar but from its original Indian owners.” 102 There will always remain the question of what “rights” Indians were selling from their point of view. From the government perspective, it was buying ownership. For example, the speech of President Jefferson, 22 April 1808 counselled Indians in negotiating to sell land, “But in all these things you have been free to do as you please; your lands are your own; your right to them shall never be violated by us; they are yours to keep or to sell as you please. Whenever you find it your interest to dispose of a part to enable you to improve the rest, and to support your families in the meantime, we are willing to buy, because our people increase fast”: Washington H (ed), Writings of Thomas Jefferson (New York: Derby and Jackson, 1859) Vol 8 at 211. 103 In 1790, Congress passed the first Indian Trade and Intercourse Act 1790 1 Stat 137, [Nonintercourse Act] (now 25 USC. §177), governing Indian lands, including land within the original 13 States, s.4: “no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.” 104 Kansas Indians 5 US (Wall) 737, 755-757 (1867); New York Indians 5 US (Wall) 761, 771-772 (1867). However, provisional State legislation respecting Indian land, to take effect when the Indian title should be extinguished, was not prohibited: George v Gamble 2 Overt (Tenn) 170 (1812).

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Extinguishment by sovereign act

The US jurisprudence on extinguishment of Indian title is unique, conditioned by the recognition of Indian title as both a legal right protected by the domestic legal system, and a sovereign right. Indian title can be terminated only by a “sovereign act”, 105 and after the Revolution, only by a sovereign act of the federal government. Whether the sovereign should exercise the power to extinguish Indian title is not a matter a court will review. 106

Extinguishment requires clear and plain intention

Indian title, including unrecognised Indian title, 107 can be extinguished only by sovereign act where the intention to effect such extinguishment is “clear and plain”108 or “plain and unambiguous”. 109

No extinguishment by a grant of tenure

A grant of tenure over Indian land was traditionally regarded as “void”. 110 An alternative jurisprudence, which became dominant, held that the grants were valid but Indian title was unaffected. A grantee received a “naked fee” 111 subject to Indian title, and therefore a right devoid of all rights of possession. 112 Well prior to the Marshall trilogy there was a “commonplace” trade in the “contingent future interests” of the naked fee. 113 In US jurisprudence there is therefore no

105 County of Oneida Indian Nation v County of Oneida 414 US 661 (1974) [Oneida I] at 666: “Indian title and good against all but the sovereign, could be terminated only by sovereign act.” 106 Sante Fe, 347: “The manner, method and time of such extinguishment raise political not justiciable issues.” 107 Oneida I at 669, quotation set out text accompanying footnote 124. 108 Lipan Apache Tribe v United States 180 Ct Cl 487, 492 (1967). 109 County of Oneida v Oneida Indian Nation 470 US 226 (1985) [Oneida II] at 248. 110 Fletcher v Peck, 143 per Johnson J (diss): “It is an established principle in our jurisprudence, that a grant of land on which the Indian title has not been extinguished, is void.” Danforth v Wear 22 US (9 Wheat) 673, 675 (1824): “As to lands surveyed within the Indian boundary, this Court has never hesitated to consider all such surveys and grants as wholly void.” Minter v Shirley, 3 Miss Reports 376, 384 (USSC, 1871): “the government never regarded the absolute title to the soil as resting in the United States, as the proprietors in fee, until ceded by the Indians. Nor did they undertake to dispose of them by grants until the acquisition of the Indian title.” 111 Beecher v Wetherby 95 US 517, 525 (1877): “But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right…The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians: that occupancy could only be interfered with or determined by the United States.” 112 Buttz v Northern Pacific Railroad 119 US 55, 67-8 (1886): “They accordingly made grants of lands occupied by the Indians, and these grants were held to convey a title to the grantees, subject only to the Indian right of occupancy... respected by the courts until extinguished; when the patentee took the unencumbered fee.” Similarly Sante Fe, at 347 “If the right of occupancy of the Walapais was not extinguished … then the respondent's predecessor took the fee subject to the encumbrance of Indian title”; Mitchel v United States, 745-46: “while the lands remained in possession of the Indians, though possession could not be taken without their consent”. 113 Banner S, How the Indians Lost Their Land (Cambridge, MA: Belknap Press, 2005) at 162 (“In the 1790s, transactions in preemption rights appear to have been commonplace”) and 163 (“contingent future interests”). In Marshall v Clark 1 Kentucky 77, 80-1 (KCA 1791): “The dormant title of the Indian tribes remained to be extinguished by government, either by purchase or by

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proposition that Indian title can be affected or extinguished by a grant of an estate in fee simple under general legislation.

A land grant may be part of the evidence that the sovereign intends to extinguish Indian title by doing a series of acts. 114 But being part of the evidence of a sovereign intention is not a proposition that the land grant itself extinguishes Indian title. Federal legislation, authorising the grant of an estate in fee to an individual, pursuant to legislation enacted for the very purpose of settlement of Indian claims, would show a clear and plain intention to extinguish Indian title. 115

(c) Compensation for extinguishment of native title

By the application of the principles of the common law with respect to the protection of property rights, comparative jurisprudence holds that there is a presumption that compensation is payable for the extinguishment of native title in the absence of a clear and plain legislative provision to the contrary.

(i) Compensation for extinguishment of Maori title

The Treaty of Waitangi Act 1975 (NZ) enables the hearing of all past Maori land disputes by the Waitangi Tribunal. The Tribunal has in various reports recommended that compensation be paid for the wrongful taking of Maori land and compensation has been paid in every case. 116 Following the National Overview Report in 1997, 117 the Crown accepted that all land confiscations (raupatu) were a breach of Treaty principles, and that all the orders of the Native Land Court after 1865 (ie orders converting Maori title to alienable estates in fee

conquest, and when that was done it enured to the benefit of the citizens who had previously acquired a title from the crown”. The case involved a land dispute in which Marshall's father was plaintiff. Banner, argues that, as a result of the trade in the naked fee, the government’s title came to be thought of as the real title, and Indian title as the right of tenants to mere occupation (“As this practice grew commonplace, lawyers increasingly came to think of the Indians as tenants on the land rather than owners of it”), leading to the eventual description of unrecognized Indian title as equivalent to a squatter’s “right”: Tillamooks minority, see footnote 73. 114 United States v Gemmill 535 F 2d 1145 (1976) held a century-long course of conduct, of which the final act - the federal payment to the Indians for the land – was found to demonstrate an “unambiguous” congressional intention to extinguish Indian title. An Act may be “interpreted as containing machinery for extinguishment of claims, including those based on Indian right of occupancy since Congress had provided a method for extinguishment”: Sante Fe at 351. 115 See Alaska Native Claims Settlement Act 1971, 43 USC §§ 1601-1629a [ANCSA], text accompanying footnote 129 116 For example the Ngai Tahu Claims Settlement Act 1996 (NZ) provides for Crown apology for unlawful acts, the creation of a cash fund for purchases of surplus Crown lands, transfer of Crown properties; rights of first refusal over certain Crown properties; and the making of various agreements which give resource co-management rights. The settlement also recognises rights of Ngai Tahu to certain shellfish, and property in all greenstone in the South Island. 117 Ward A, Rangahaua Whanui National Overview Report (Wellington: GP Pubs for Waitangi Tribunal Research Services, 1997) in three volumes.

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simple) were also in breach of Treaty principles, and has commenced a process for payment of compensation for all these actions. 118

(ii) Compensation for extinguishment of Aboriginal title

Compensation prior to the Constitution Act 1982

Canadian law has always recognised a right to compensation for the extinguishment of Aboriginal title. 119

Compensation after the Constitution Act 1982

The recognition of Aboriginal rights in the Constitution Act 1982 (Can) requires a reconciliation of the power to extinguish Aboriginal title with its constitutional recognition, and “the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies Aboriginal rights.” 120 It is within the analysis of justification that the question of whether “fair compensation is available” 121 is addressed.

(iii) Compensation for extinguishment of Indian title

With respect to the taking of recognised Indian title, compensation is payable, as Indian title is a proprietary right no “less valuable than full title in fee”. 122 Tee Hit Ton held that unrecognised Indian title as a permissive right, although enforceable against third parties, may be taken by the federal government without consent and without compensation. 123 Whether this principle is still good law is to be doubted. In the 1980s, the Oneida Indian Nation sought compensation with respect to land taken contrary to the Nonintercourse Act . In Oneida I, the Supreme Court, in recognising a right to compensation declined to distinguish between recognized and unrecognized Indian title: “a tribal right of occupancy, to be protected, need not be ‘based upon a treaty, statute, or other formal government action’,” 124 citing Sante Fe , Worcester v Georgia and Mitchel.125

118 Lashley M, “Implementing Treaty Settlements via Indigenous Institutions: Social Justice and Detribalization in New Zealand” (2000) 12 The Contemporary Pacific 1;. Office of Treaty Settlements, Healing the past, building a future (2ed Wellington: OTS, 2002); see for example, Waikato Raupatu Claims Settlement Act 1995 (NZ); Pouakanui Claims Settlement Act 2000 (NZ). 119 Delgamuukw at [203] per La Forest J: “Indeed, the treatment of “Aboriginal title” as a compensable right can be traced back to the Royal Proclamation“. Similarly Delgamuukw BCCA at 537 per McFarlane JA. 120 Sparrow at 1109 per Dickson CJ and La Forest J. 121 Sparrow at 1119 per Dickson CJ and La Forest J. 122 United States v Shoshone Tribe 304 US 111, 116 (1938). 123 Tee Hit Ton Indians, 279: “This is … because Indian occupation of land without government recognition of ownership creates no rights against taking or extinction by the United States protected by the Fifth Amendment or any other principle of law.” 124 Oneida I at 669 quoting from Sante Fe, 347. 125 Oneida I at 669 referring to the passage in Mitchel 34 US at 746 that the Indian right of occupancy is considered “as sacred as the fee simple of the whites”.

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This decision was reaffirmed in Oneida II ,126 and subsequent litigation. 127 Tee Hit Ton was not cited in the Oneida cases. The view of US courts below the Supreme Court is that there is no distinction between recognised and unrecognised Indian title with respect to the right to compensation. 128

The legacy of Tee Hit Ton , a decision relating to Alaska, is twofold. Notwithstanding the decision, the Alaska Native Claims Settlement Act 1971 129 provided for “fair and just settlement of all claims by Natives and Native groups of Alaska, based on aboriginal land claims”, 130 including payment of compensation. The second consequence flows from the fact that, just as Tee Hit Ton did not expressly overrule Tillamooks , the Oneida cases did not expressly overrule Tee Hit Ton . The Oneida cases, in recognizing a right to compensation, either rejected a conception of unrecognized Indian title altogether, or if a conception of unrecognized Indian title was affirmed, then unrecognized Indian title, as a permissive occupancy, was considered to be property under the Constitution, extinguishment of which dictated the payment of compensation.

126 Oneida II 470 US 226 (1985). 127 County of Sherrill v Oneida Indian Nation 544 US 1, 12 (2005): “Our 1985 decision recognized that the Oneidas could maintain a federal common-law claim for damages for ancient wrongdoing”.(emphasis added) The Oneida Cases concerned recognized Indian title, but the passage underlined in the quotation is a reference to unrecognized Indian title. 128 Alabama-Coushatta Tribe of Texas v US 2000 WL 1013532 (Fed Cl) at 15; Lipan at 494; US ex rel Chunie v Ringrose 788 F 2d 638, 642-43 (1986). 129 ANCSA. Ford M, “Indian Country and Inherent Tribal Authority: Will They Survive ANCSA?” (1997) 14 Alaska L Rev 443 notes that from the Treaty Concerning the Cession of Russian Possessions in North America 1867, to the Alaska Statehood Act of 1958 undefined Indian land rights have always been acknowledged. 130 43 USC § 1601(a).

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§2.3 Aboriginal rights

In Canada, New Zealand and the USA, Aboriginal rights, other than native title, are recognised. These are generally rights such as hunting, fishing and forestry rights on land over which native title has never been, or is no longer, asserted. 131 Such rights do not require recognition by executive or legislative act.

The recognition of distinct Aboriginal rights draws attention to Aboriginal title as a conceptualisation about “title” to land, and the idea of “title” as a controlling aspect. It emphasises that the fragmentation of Aboriginal title into a bundle of Aboriginal rights has been rejected in the comparative jurisprudence. Native title is a true form of title to land, notwithstanding that other non-title rights over land are also recognized.

In US jurisprudence most Indian rights now exist as reservations of specific rights in treaties, and the jurisprudence inevitably involves a comparison between the treaty reservation of the right and the constitutionally permissible effect of legislation affecting that right. Unlike title, a conception of rights envisages co-existing Indian and state rights, rather than a blanket extinguishment of rights: “Indian treaty rights can coexist with state management of natural resources”. 132 There must be a clear and plain intention to regulate, diminish or extinguish Indian rights. 133 The extinguishment of Indian title does not mean extinguishment of Indian rights over the land. 134

The common law of Canada recognises Aboriginal rights. 135 An Aboriginal right 136 can be established independently of Aboriginal title: “ even if they have not shown that their occupation and use of the land was sufficient to support a claim of title to the land , they will have demonstrated that they have an Aboriginal right” 137 (emphasis in original) . The source of Aboriginal rights lies in a notion of respect for

131 See §3.2(d) Pre-existing rights include rights unknown to the common law. 132 Minnesota v Mille Lacs Band of Chippewa Indians 526 US 172, 219 (1999) per O'Connor J: “We have repeatedly reaffirmed state authority to impose reasonable and necessary non-discriminatory regulations on Indian hunting, fishing, and gathering rights in the interest of conservation.” 133 Ibid: “Congress may abrogate Indian treaty rights, but it must clearly express its intent to do so.” There must be “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” 134 Leech Lake Band of Chippewa Indians v Herbst 334 F Supp 1001 (1971) holding that legislation which provided for a complete extinguishment of Indian title did not abrogate treaty fishing and hunting rights. 135 Van der Peet at [28] per Lamer CJ: “Aboriginal rights existed and were recognized under the common law”. 136 Mitchell v MNR [2001] 1 SCR 911 [Mitchel v MNR] at [12] per McLachlin CJ Gonthier, Iacobucci, Arbour and LeBel JJ: “an Aboriginal claimant must prove a modern practice, tradition or custom that has a reasonable degree of continuity with the practices, traditions or customs that existed prior to contact. The practice, tradition or custom must have been “integral to the distinctive culture” of the Aboriginal peoples, in the sense that it distinguished or characterized their traditional culture and lay at the core of the peoples' identity.” 137 R v Adams [1996] 3 SCR 101 at [26] per Lamer CJ delivering judgment of Lamer CJ and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

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a right to live, 138 and so conceptions of property need have no relevance to Aboriginal rights. 139 Aboriginal rights are true legal rights 140 and include land use- rights such as the right to hunt and fish. 141 . It has been argued that Aboriginal rights include quasi-sovereign rights. 142 Aboriginal rights held at an individual level are not recognised. 143 A clear and plain intention is required to extinguish Aboriginal rights. 144 The grant of an estate in fee simple does not extinguish an Aboriginal right over that land. 145

Maori rights are recognised by New Zealand law. 146 Such rights are communal 147 and now generally protected and regulated by legislation. 148 Customary rights can be extinguished by “adverse legislation or procedure which plainly and clearly extinguishes it”. 149 They are not extinguished by the grant of interests in land. 150

138 R v Sappier; R v Gray [2006] 2 SCR 686 at [45]: “The aboriginal rights doctrine…arises from the simple fact of prior occupation of the lands now forming Canada. …The focus of the Court should therefore be on the nature of this prior occupation. … an inquiry into the pre-contact way of life of a particular aboriginal community, including their means of survival, their socialization methods, their legal systems, and, potentially, their trading habits.” 139 Ibid at [21]: “In characterizing aboriginal rights as sui generis, this Court has rejected the application of traditional common law property concepts to such rights”. 140 Van der Peet at [28] per Lamer CJ: “The task of this Court is to define aboriginal rights in a manner which recognizes that aboriginal rights are rights.” 141 For example, Sparrow (fishing). 142 An inherent Aboriginal right to self-government has been recognized by executive policy: Department of Indian Affairs and Northern Development (Canada), Federal Policy Guide: Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (Ottawa: Minister of Public Works and Government Services Canada, 1995) at 3-4; Slattery B, “What are Aboriginal Rights?” in Foster H, Raven H and Webber J, (eds) Let Right Be Done: Calder, Aboriginal Title, and the Future of Indigenous Rights (Vancouver: UBC Press, 2007) argues that Aboriginal rights also include the right to conclude treaties, the right to customary law, the right to honourable treatment by the Crown, and the right of cultural integrity. 143 R v Sappier; R v Gray at [26]: “The right to harvest wood for domestic uses is a communal one. …The right to harvest… is not one to be exercised by any member of the aboriginal community independently of the aboriginal society it is meant to preserve.” In Beattie v Canada (2000) 197 FTR 209 at 215, Rouleau J struck out a pleading claiming breach of individual Aboriginal rights: “In law, the plaintiffs have no personal entitlement in regard to mineral rights”. 144 Sparrow at 1097: “The test of extinguishment to be adopted, in our opinion, is that the Sovereign's intention must be clear and plain if it is to extinguish an Aboriginal right.” Similarly R v Sappier; R v Gray at [57]. 145 See §6.3(d) Australian jurisprudence: the extinguishment of native title by grant of an estate in fee simple . 146 In Te Weehi, 690-691 the High Court recognised a Maori fishing right as non-territorial and existing independently of any proprietary right over land: “the customary right contended for in this case is not based upon ownership of the land or upon an exclusive right to a foreshore or bank of a river. In that sense this claim is a “non-territorial” one.” 147 Whata-Wickliffe v Treaty of Waitangi Fisheries Commission CA73/04 [30 June 2004] (NZCA) at [126]: “fisheries were always a matter of iwi or hapu mana, not individual mana. … individual ownership is not customary.” 148 For example, Maori Fisheries Act 1989 (NZ); Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (NZ). 149 Te Weehi at 686. 150 See §6.3(d) Australian jurisprudence: the extinguishment of native title by grant of an estate in fee simple.

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§2.4 Conclusion: native title as ownership and property

Native title as ownership

Jurisprudence in New Zealand ( Wi Parata years) and Canada ( St Catherine's ), was once able to acknowledge absolute ownership of land by the Crown by denying Aboriginal ownership. The jurisprudence of New Zealand ( Ngati Apa ), Canada (Delgamuukw ) and the USA ( Worcester v Georgia, Onieda cases) now acknowledge native title as ownership or a property right akin to ownership, a right to everything on or under the land, and a right to use the land for any lawful purpose. The absolute nature of the indigenous entitlement to land that the comparative jurisprudence recognises, prior to any statutory modification or extinguishment, emphasises that holders of native title hold rights of ownership.

Communal title to land

The comparative jurisprudence sees native title as a communal assertion of right. No individual possesses native title. Native title is about “title” to land, a right of exclusionary control asserted at the communal level. 151

Acquisition and extinguishment of native title

The comparative jurisprudence establishes three propositions with respect to the extinguishment of native title which flow from the recognition of native title as a form of property akin to ownership:

1. native title can be purchased from the native title holders; 2. native title can be extinguished only by an executive or legislative act evincing a clear and plain intention to do so; 3. there is no doctrine of extinguishment of native title by grant of tenure.

The third proposition is a consequence of the second – the grant of an interest in land under general legislation is not a clear and plain intention to extinguish native title.

Compensation for the extinguishment of native title

Comparative jurisprudence dictates that compensation is presumed to be payable for the extinguishment of native title, in the absence of a clear and plain legislative provision to the contrary. In US jurisprudence the right to compensation is guaranteed by the Constitution, and so Indian title cannot be taken without the payment of compensation.

151 A proposition developed more fully at §4.2(b)(ii) The centrality of the community: the locus of exclusive possession.

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Relevance of Aboriginal rights

Comparative jurisprudence holds that various Aboriginal land-use rights are recognised by the common law as existing independently of native title, and comparative jurisprudence has declined to fragment native title into a bundle of separate land-use rights. In the comparative jurisprudence, native title remains a true form of title to land akin to ownership.

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CHAPTER 3 - FULL RESPECT: THE STANDARD BY WHICH TO ASSESS THE CONCEPTUALISATION AND EXTINGUISHMENT OF NATIVE TITLE ______

Australian law recognises native title is a proprietary interest in land on the basis of full respect for pre-existing rights. The idea of full respect rests on three bases.

§3.1 Acquisition of sovereignty is based on full respect for pre-existing rights

The first basis for full respect is that, not only did the acquisition of imperial sovereignty not extinguish pre-existing rights to land, it was expressly predicated on the basis that pre-existing rights would be fully respected. Sovereignty was asserted in order to subject the lands and inhabitants to the new sovereign power, not to disturb pre-existing property rights. Pre-existing rights continued under the lex loci in ceded or conquered colonies, and under the introduced law in settled colonies, as the common law right of native title.

§3.2 The Continuity Doctrine: the common law principle of full respect for native title

The second basis for full respect is that, in settled colonies, introduced English law recognised native title under the continuity doctrine. The continuity doctrine dictates that pre-existing rights, including rights unknown to the common law, are recognised and protected as the common law right of native title, and that introduced law is modified to the extent necessary to accommodate the recognition of native title.

§3.3 The principle of equality before the law dictates the recognition of native title

In Australia the recognition of native title also rests on a third basis: that to deny the existence of native title is inconsistent with the common law principle of equality before the law.

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§3.1 Acquisition of sovereignty is based on full respect for pre-existing rights

Under English law, British sovereignty over the Colony of New South Wales was established on 7 February 1788, 1 and over the remaining Australian Colonies at later dates. It is a principle of colonial constitutional law that the acquisition of sovereignty, whether by conquest, cession or settlement, is on the basis of full respect for the property rights of existing inhabitants.

(a) Acquisition of sovereignty by settlement, conquest and cession

Writing in 1765, Blackstone stated that English law recognised three ways of acquiring sovereignty over new lands: occupation [or settlement], conquest and cession, and the law in force in the new lands depended on the manner by which sovereignty was acquired. 2 With respect to colonies gained by conquest, or ceded by treaty, the king might change pre-existing laws, “but, till he does actually change them, the ancient laws of the country remain”. 3 But with respect to lands claimed by a “right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country” 4 then: “Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony.” 5 The Australian Colonies are settled colonies. 6

(b) Pre-existing rights survive the change in sovereignty and are fully respected

Australian and comparative jurisprudence hold that rights that predate European colonization survive the change in sovereignty, whether sovereignty is acquired by conquest, cession or settlement. 7 Those pre-existing rights continue under the lex loci in conquered or ceded colonies, and under English law in settled colonies because the purpose of the colonial endeavour was to assert sovereignty, primarily against other European nations, rather than to destroy the pre-existing social and legal order in the colonial lands. The High Court stated that extinguishment of native title was “an unnecessary step to take” 8 because the

1 Mabo at 78-79 per Deane and Gaudron JJ. 2 Earlier sources treated plantations and conquests as synonymous: McHugh PG, The Common- Law Status of Colonies and Aboriginal “Rights”: How Lawyers and Historians Treat the Past (1998) 61 Sask L Rev 393 [McHugh Common Law] at 408. 3 1 Blackstone Commentaries at 104-5. 4 1 Blackstone Commentaries at 104 and all later editions of Blackstone. 5 1 Blackstone Commentaries (4ed, 1770) at 107. 6 §3.2 Introduction of English law. 7 Australia: Mabo at 57 per Brennan J: “a mere change in sovereignty does not extinguish native title to land” Similarly 82 per Deane and Gaudron JJ, 184 per Toohey J. Canada: Roberts v Canada [1989] 1 SCR 322 at 340: “aboriginal title pre-dated colonization by the British and survived British claims of sovereignty”. NZ: Te Weehi at 687: “Local laws and property rights of (native) peoples in ceded or settled colonies were not set aside by the establishment of British sovereignty.” Ngati Apa at [13] per Elias CJ: “The transfer of sovereignty did not affect customary property.” USA: United States v Percheman 32 US 51 (1833) 86-87 per Marshall CJ. 8 Western Australia v Commonwealth (1995) 183 CLR 375 [Native Title Act Case] at 422 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ: “But the facts revealed by the history of the establishment of Western Australia show only that it was intended to exercise the sovereign power

page 33 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title colonial policy of making lands available for settlement by Europeans could be implemented without extinguishment. By the Act of State acquiring territory, the new Sovereign can extinguish pre-existing rights by clear and unambiguous act, although the presumption is that no extinguishment is intended, 9 and no such intention was manifested in the Australian Colonies. 10

While non-extinguishment dictates recognition of native title, there is a wider principle than simply non-extinguishment. The Privy Council in Amodu Tijani 11 set out a principle of full respect for pre-existing property rights as a postulate of the acquisition of sovereignty by cession:

No doubt there was a cession to the British Crown, along with the sovereignty, of the radical or ultimate title to the land, in the new colony, but this cession appears to have been made on the footing that the rights of property of the inhabitants were to be fully respected. This principle is a usual one under British policy and law when such occupations take place. 12

Similarly in Adeyinka Oyekan v Musendiku Adele 13 the Privy Council stated:

The effect of the Act of State is to give to the British Crown sovereign power to make laws and to enforce them, and therefore the power to recognize existing rights or extinguish them or to create new ones. … In inquiring, however, what rights are recognized, there is one guiding principle. It is this: The courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected. 14

In Mabo Brennan J applied the Adeyinka Oyekan passage, 15 and Deane and Gaudron JJ applied the Amodu Tijani passage, 16 of full respect for pre-existing rights, to the acquisition of sovereignty by settlement over the Colony of New

of the Crown to grant land to immigrant settlers. .. an inference that the British Crown intended a general extinguishment of native title cannot be drawn. Extinguishment would have been seen to be an unnecessary step to take. The Crown's colonial policy was capable of being implemented without a general extinguishment of native title.” 9 Mabo at 95 per Deane and Gaudron JJ: “Both legal principle relating to the deprivation of property or rights and considerations of justice require that any such act or declaration be clear and unambiguous”; and at 57 per Brennan J. 10 Native Title Act Case at 422 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ. 11 Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399. 12 [1921] 2 AC 399 at 407. 13 Adeyinka Oyekan v Musendiku Adele (1957) 1 WLR 876 (PC). 14 ibid at 880 per Lord Denning. 15 Mabo at 56 per Brennan J. 16 Mabo at 82 per Deane and Gaudron JJ referring to “the kinds of pre-existing native interests in land which are assumed to have been fully respected under the common law applicable to a new British Colony” stated: “Similarly, in Amodu Tijani .. at 407, the Privy Council affirmed and applied the “usual” principle “under British ... law” that when territory is occupied by cession, “the rights of property of the inhabitants (are) to be fully respected”.

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South Wales. Comparative jurisprudence has also applied the principle of sovereign respect to all forms of acquisition of sovereignty. 17

(c) Aboriginal communities as objects of Crown sovereignty

On the assertion of imperial sovereignty, Aboriginal people in Australia became British subjects. 18 The dispossession of British subjects in England occurred for reasons of domestic public policy (for example, to construct railways) pursuant to clear, and originally case specific, legislative authority. 19 The dispossession of Aboriginal people occurred at the communal level for the purpose of colonial settlement, as part of the sovereign purpose of peopling the land against claims by other European sovereigns. 20 Aboriginal communities were vulnerable to the direct exercise of sovereign power in a way that other British subjects were not. Aboriginal communities were the objects against which imperial sovereignty was directed: conquest or cession, the sword or treaty. In Mabo, Brennan J stated that Aboriginal dispossession was a result of the exercise of sovereignty powers:

They were dispossessed by the Crown's exercise of its sovereignty powers to grant land to whom it chose and to appropriate to itself the beneficial ownership of parcels of land for the Crown's purposes. 21

Non-Aboriginal subjects were not dispossessed by granting their land to others.

The issue that arises in this context is whether the directing of Crown sovereignty at Aboriginal communities dictates the development of common law doctrines addressing the unique vulnerability of Aboriginal communities as objects of Crown sovereignty. Canadian and New Zealand jurisprudence hold that a fiduciary duty on the Crown, with respect to the surrender or extinguishment of

17 Hall J in Calder at 402: “The appellants rely on the presumption that the British Crown intended to respect native rights; therefore, when the Nishga people came under British sovereignty.” In Mitchell v MNR at [144] Binne J cited Lord Denning’s guiding principle and explained recognition of Aboriginal title in the following manner: “As with the modern law of aboriginal rights, the law of sovereign succession was intended to reconcile the interests of the local inhabitants across the empire to a change in sovereignty”. Rhode Island v Massachusetts 37 US 657 (1838): “That when a territory is acquired by treaty, cession, or even conquest, the rights of the inhabitants to property, are respected and sacred.” 18 Mabo at 38 per Brennan J: “Upon the Crown acquiring sovereignty, Aboriginal persons became British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges and subject to such liabilities as the common law and applicable statutes provided….The common law thus became the common law of all subjects within the Colony who were equally entitled to the law's protection as subjects of the Crown. Similarly R v White and Bob (1964) 50 DLR (2d) 613, 617- 618: “Indian tribes were not separate nations, being comprised of British subjects.” 19 First recorded takings Act appears to be Repair of Roads and Bridges Between Abingdon and Dorchester Act, 9 Hen V, c11 (1421) which declared the road and bridges common highways, and authorised the inhabitants of the area to take gravel, trees, or loam for the repair of the structures. 20 This is commonly ascribed as the motivation for British settlement: Martin G (ed), The Founding of Australia: The Argument about Australia’s Origins (Sydney: Hale & Iremonger, 1978) examines imperial policy justifications for settlement, and notes Matra’s ‘Proposal for establishing a Settlement in New South Wales’, 23 August 1783 did not mention transportation of convicts. 21 Mabo at 50 per Brennan J.

page 35 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title native title, arises by reason of this unique vulnerability to the direct exercise of sovereign power. 22 US jurisprudence recognises trust like obligations towards Indians. 23 A fiduciary duty has not been recognized in Australian jurisprudence. 24

(d) Native title to be reconciled with Crown sovereignty

Sovereignty, as the ultimate source of legal authority, dictates that subjects cannot possess legal rights inconsistent with sovereign authority. Aboriginal rights become common law rights “unless … incompatible with the Crown's assertion of sovereignty”. 25 Therefore full respect for native title must be manifested in a way that gives meaning to Crown sovereignty. 26 A pre-existing right of exclusive occupation cannot be transmitted in toto to a group of British subjects so as to enable them to found a new colony independent of the Crown, a concern expressed in Symonds :

If a subject of the Crown could by his own act, unauthorized by the Crown, acquire against the Crown a right to any portion of the lands of a new country, it is plain that he might, acting upon that right, proceed to form a colony there. Now, the law of England denies to any subject the right of forming a Colony without the license of the Crown. 27

Claims to Aboriginal rights akin to immunity from the legislative or political power of the state raise issues affecting Crown sovereignty. But does the reconciling of such rights with Crown sovereignty have meaning for native title as a property right under domestic law? A claim to native “title” is a claim to a domestic property right, not a claim that Aboriginal law is a superior source of law, or source of immunity from national sovereignty. In Australian and comparative jurisprudence, the reconciliation of native title and sovereignty occurs in the recognition of sovereignty as a power to extinguish native title by

22 In dealings between Government and Aboriginal people, the “honour of the Crown” is at stake: Delgamuukw at [186], similarly Van der Peet at [35]; Mitchell v MNR at [9]. In New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513, 517 the Privy Council sourced the fiduciary duty directly in sovereignty: “in return for being recognised as the legitimate government of the whole nation by Maori”. See generally Frame A, The Fiduciary Duties of the Crown to Maori: Will the Canadian Remedy Travel? (2005) 13 Waikato L Rev 111. 23 Seminole Nation v United States 316 US 286 (1942) at 296-297: The US government, in dealing with the Indians “has charged itself with moral obligations of the highest responsibility and trust”. 24 In Mabo only Toohey J considered that the Crown stood in a fiduciary relationship with the native title holders. The power to destroy native title was so “extraordinary” that it was appropriate for “equity to ensure that the position [of the Crown] is not abused”(at 203). 25 Mitchell v MNR at [10] per McLachlin CJ Gonthier, Iacobucci, Arbour and LeBel JJ: “aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights, unless (1) they were incompatible with the Crown's assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them.” 26 Bartlett RH, “The Content of Aboriginal Title and Equality before the Law” (1998) 61 Sask L Rev 377 [Equality before the Law] at 382: “reconciliation would have permitted impairment of pre- existing rights in order to give full effect to Crown sovereignty.” 27 Symonds at 395 per Martin CJ.

page 36 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title purchase 28 (extinguishment by consent) or clear and plain executive or legislative act (non-consensual extinguishment).

28 The voluntary surrender of native title was the primary method of reconciliation: Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511 at [25] per McLachlin CJ and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ: “Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties.”

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§3.2 The Continuity Doctrine: the common law principle of full respect for native title

The settlement doctrine was applied to the Australian Colonies, introducing English law to the exclusion of Aboriginal law. Mabo held that English law recognised and protected the property rights to land of Aboriginal people. English law became the law of the land, in part, to prevent a “failure of justice”, for unless English law applied: “any injury … done there by any of the King’s officers would have been altogether without redress” ,29 part of the larger rationale to extend the benefits of civilisation, including the rule of law, to the colonised. 30

(a) Introduction of English law

The reconciliation of two distinct systems of law under the one sovereign is non- problematic from a jurisprudential point of view. 31 In Canada, New Zealand and Australia, imperial legislation introduced English law or confirmed its prior introduction, 32 effectively rendering otiose the question of whether English law had been introduced by the assertion of sovereignty. The question of whether the statutes governing the Australian Colonies were “confirmatory”,33 or introduced English law again has not been resolved.34 There is no judicial decision applying a settled colony doctrine to Canada or New Zealand. According to academic opinion and colonial policy, sovereignty over Canada was acquired by a

29 Mostyn v Fabrigas (1774) 1 Cowp 161 (KB) at 181 Lord Mansfield held that English law applied to Labrador, there being “no local Courts among the Esquimaux Indians upon that part of the Labrador coast; and therefore whatever any injury had been done there by any of the King’s officers would have been altogether without redress.” To deny jurisdiction “would be a failure of justice, for it was on the coast of Nova Scotia, where there were no regular Courts” (at 180). 30 Lord Russell Despatch 62 to Gipps 21 December 1839 1 HRA (ser I) at 440: “it is impossible that the Government should forget that the original aggression was our own, and that we have never yet performed the sacred duty of making any systematic or considerable attempt to impart to the former occupiers of New South Wales the blessings of Christianity, or the knowledge of the Arts and advantages of civilised life”. 31 Legal pluralism is generally defined as a situation in which two or more legal systems coexist in the same area: Griffiths J, “What is legal pluralism?” (1986) 24 J Legal Pluralism 1. If the law finder and law content are part of one system, this is generally called a mixed system: Tetley W, “Mixed Jurisdictions: Common Law vs Civil Law” (1999) 4 Uniform L Rev (Part 1) 591 at 592: “mixed jurisdictions include Louisiana, Québec, …South Africa, ... and Scotland”. 32 Canada various dates: eg The Constitutional Act of 1791 (UK), 31 George III c.31, for Ontario; see Cote J, “Introduction of English Law into Alberta” (1964) 3 Alberta LR 262 at 263; New Zealand: English Laws Act 1858 (NZ), section 1, retrospectively declared that English law applied in New Zealand from 14 January 1840. New South Wales, Tasmania, Victoria and Queensland: Australian Courts Act 1828 (UK), 9 Geo IV c83, s. 24 stated that, from the date of assent (25 July 1828): “all laws and statutes in force within the realm of England at the time of the passing of it, shall be applied in the administration of justice in the courts of New South Wales so far as the same can be applied.” The relevant dates are 1 June 1829 for Western Australia: Interpretation Act 1984 (WA), s 73; 28 December 1836 for South Australia; s 3 of Act No. 9 of 1872 (SA) and the Northern Territory 22 September 1863; Sources of Laws Act 1981 (NT). 33 Dugan v Mirror Newspapers (1978) 142 CLR 583 at 587. 34 Various views were expressed in Quan Yick v Hinds (1905) 2 CLR 345; Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283; Mitchell v Scales (1907) 5 CLR 405.

page 38 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title combination of cession from France under the Treaty of Paris, and settlement, 35 and notwithstanding the Treaty of Waitangi, sovereignty over New Zealand is generally accepted to have been acquired by settlement. 36

(i) Acquisition of sovereignty by settlement

Blackstone stated that in colonies acquired by settlement a necessarily modified English law was introduced:

all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony. 37

Although Blackstone’s statement was derived from previous dicta with respect to truly uninhabited lands, 38 English opinion prior to Blackstone had already applied the settled colony doctrine to the American Colonies. 39

(ii) USA: The discovery doctrine

It was the general view of 18 th century American commentators, prior to the Marshall trilogy, that sovereignty over the American colonies was acquired by settlement. 40 It was the general English view that sovereignty was acquired over

35 Cote J, “Introduction of English Law into Alberta” (1964) 3 Alberta LR 262. 36 McHugh Common Law at 422: “This initial designation of New Zealand as a settled colony was never controverted by the Colonial Office and provided the basis for the constitutional arrangements thenceforth made for the country”. 37 1 Blackstone Commentaries (4 th ed, 1770) at 107. 1 Blackstone Commentaries (1 st ed) at 104-5 simply reads: “all the English laws are immediately then in enforce. For as the law is the birthright of every subject, so wherever they go they carry their laws with them”. The passage was further embellished in Blackstone Commentaries (5 th ed, 1775 at 107 which excluded laws that are “neither necessary nor convenient”. 1 Blackstone Commentaries (9th ed) of 1783 at 107: “Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant Colony; such, for instance, as the general rules of inheritance, and protection from personal injuries. The artificial requirements and distinctions incident to the property of a great and commercial people,… and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force.” (footnotes omitted) 38 Blankard v Galdy (1693) 2 Salk 411: “an uninhabited country newly found out by English subjects.” Privy Council Memorandum, set out in Case 15 – Anonymous (1722) 2 Peere Williams 75: “That if there be a new and uninhabited country found out by English subjects”. 39 The first opinion in 1720 declared that the common law of England was the common law of the plantations. “Let an Englishman…go where he will, he carries as much of law and liberty with him as the nature of things will bear.”: Chalmers G, Opinions of Eminent Lawyers on Various Points of English Jurisprudence (London, Reed & Hunter, 1814) at 209. The second in 1729 dealt with statute law in Maryland (ibid at 208). 40 Tucker St. G (ed), Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States (Philadelphia: Birch and Small, 1803) at Appendix 429-30 considered the settlement doctrine applied. Chalmers G, Political Annals of the Present United Colonies [1780] (facsimile, New York: Burt Franklin, 1968) at 28: “No conquest was ever attempted over the aboriginal tribes of America: Their country was only considered as waste, because it was

page 39 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title the American Colonies by conquest,41 and therefore the common law did not apply to these lands, although in every case commentators or courts declined to say what law did apply. If the colonies were conquered colonies, there could be no doubt about the answer under colonial constitutional law: pre-existing law applied until altered by the king. In Johnson v McIntosh Marshall CJ fashioned a new rule, 42 better adapted to “the actual state of things”43 rather than follow Blackstone. The Marshall trilogy held that sovereignty over the American colonies was acquired under a doctrine of discovery, confirmed by subsequent possession. 44 As the wholesale introduction of English law would have offended democratic sensibilities, American cases adopted a heavily qualified version of the Blackstone formulation with respect to the modification of English law. 45

(iii) Australia: settled colony doctrine applied

Subsequently to Blackstone, English jurisprudence made a further distinction that was not part of settled colony doctrine as set out in Blackstone: “uninhabited” lands included lands where the inhabitants were backward. 46

uncultivated, and therefore open to the occupancy and use of other nations.…” (spelling modernised). This does not imply that the settlement was peaceful: Williams RA, The American Indian in Western Legal Thought: The Discourses of Conquest (New York: OUP, 1990) Chapter 5 English conquest of Virginia, 193–225. 41 Smith v Brown (1702-05) 2 Salk 666 per Holt CJ: “for the laws of England do not extend to Virginia, being a conquered country their law is that the King pleases.” Similarly 1 Blackstone Commentaries at 107: “Our American Plantations …being obtained…either by right of conquest…or by treaties. And, therefore, the common law of England, as such, has no allowance or authority there….” Similarly Chitty J, Prerogatives of the Crown (London: Butterworths, 1820) [Chitty’s Prerogatives] at 29. In Penn v Lord Baltimore (1750) 1 Ves Sen 444 at 451, Lord Hardwicke took a different view: America, was a land “uncultivated and possessed by barbarians,” and sovereignty was acquired by the “European country” which “first set up marks of possession”. 42 This is the way that Marshall CJ's approach is perceived though, as indicated in the quotation from Penn v Baltimore in footnote 41, this approach was not unprecedented. 43 Johnson v McIntosh at 573.. 44 Worcester v Georgia at 543-544: “Discovery … gave to the nation making the discovery…the sole right of acquiring the soil … It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.” Story J, Commentaries on the Constitution (Boston: Hilliard, Gray, & Co, 1833) [Story Commentaries]: “§152. … Blackstone .. insists, that the American colonies are principally to be deemed conquered, or ceded countries. §152. There is great reason to doubt the accuracy of this statement in a legal view. … the European nations, by whom America was colonized,…claimed an absolute dominion … not in virtue of any conquest of, or cession by the Indian natives; but as a right acquired by discovery.” Similarly Kent J, Commentaries on American Law (New York: O Halstead, 1826-30) [Kent Commentaries] Vol 3, at 308 to 313 45 Van Ness v Pacard 2 Pet 137, 144 (1829) per Story J: “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.”. Story Commentaries §148. “..they carry with them all the laws applicable to their situation, and not repugnant to the local and political circumstances ...” 46 The process begins with Advocate-General of Bengal v Ranee Surnomoye Dossee (1863) 2 Moo NS 22 at 59 per Lord Kingsdown: “Where Englishmen establish themselves in an uninhabited or barbarous country”. Gibbs CJ in Coe v Commonwealth [1979] 53 ALJR 403 at 407 referred to “a

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Thus New South Wales was considered to be “practically unoccupied, without settled inhabitants or law”, 47 allowing the new colony to be regarded as settled by English subjects. Under this doctrine, appropriate English law was introduced into the Australian Colonies.

Although the no-settled-law justification for the settled colony doctrine was rejected in Mabo ,48 the introduction of English law was re-affirmed. The High Court did not offer a new legal principle to justify either New South Wales as a settled colony, or the common law introduction of English law. The common law introduction of English law is now a matter of established background. 49

It has been argued that the distinction between conquest/cession and settlement “is one of the reddest herrings in the scholarship of Aboriginal rights”. 50 The underlying argument is that native title rights owe their origin to the conduct of the Crown after the assertion of sovereignty, and so the means by which sovereignty was acquired is irrelevant. 51 This approach does not account for native title as the recognition of property rights pre-existing the assertion of sovereignty. While the settled colony doctrine in Blackstone’s formulation does not envisage the presence of a community of indigenous people, the doctrine as later applied accepts the occupation of land by Aboriginal communities, and does not deny common law rights flowing from their presence. However, in the absence of a system of legal pluralism, the doctrine does deny pre-existing lex loci continuing as “law”. 52 Pre-existing rights can only continue as rights under the introduced law.

colony acquired by settlement in a territory which, by European standards, had no civilized inhabitants or settled law. Australia has always been regarded as belonging to the latter class”. 47 Cooper v Stuart (1889) 14 AC 286 at 291: “without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions”. 48 Mabo at 42 per Brennan J: “The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country”. 49 Yarmirr at [41] per Gleeson CJ, Gaudron, Gummow and Hayne JJ deal with the issue in one sentence: “All members of the Court [in Mabo] accepted that on settlement of an Australian colony the settlers brought the common law with them.” 50 McHugh Common Law at 402. 51 McHugh Common Law develops this thesis by reference to New Zealand and Canadian law. This argument is made only by New Zealand and Canadian writers, relying on the history of Crown dealings: eg Slattery B, “Understanding Aboriginal Rights” (1987) 66 Canadian Bar Rev 727, [Slattery Understanding Aboriginal Rights] 737; similarly Cox N, “The Extension of the Common Law to Settled, Ceded and Conquered Territories, and the Survival of Indigenous Laws”, Paper at the ANZ Law and History Society Conference, U Waikato, July 2001. In Slattery B, “Making Sense of Aboriginal and Treaty Rights” (2000) 79 Canadian Bar Rev 196 “The principal source of the doctrine of aboriginal rights is an ancient body of inter-societal custom that emerged from relations between British colonies and neighbouring Indian nations in eastern North America. 52 McHugh Common Law 426 argues that, in a territory “without a suitable lex loci”, English law was introduced irrespective of conquest or settlement. Lester, not cited in McHugh, discusses all the case law and texts discussed by McHugh to support this proposition, but comes to the opposite conclusion: conquest meant continuing lex loci, without regard to suitability issues.

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(b) English law is introduced and Aboriginal law is displaced

It can be accepted that at sovereignty, systems of Aboriginal law were in place. 53 The effect of the settlement doctrine was to introduce a modified English law. The question raised by the introduction of English law was whether it operated to displace pre-existing law in all cases.

There is, of course, the air of absurdity about a proposition that, in February 1788, the relevant law throughout the whole of the Colony of New South Wales became English law 54 and that it applied to determine legal rights and obligations in all intra-Aboriginal disputes. However, Mabo holds that from the moment of sovereignty, English law became the law of the Australian colonies, 55 and the only legal rights were those recognized by English law. The possibility of some form of legal pluralism, 56 while acknowledged in early Australian case law, 57 was rejected. The jurisprudence of Australia, 58 Canada 59 and New Zealand 60 have all rejected any notion of Aboriginal law continuing as “law”. 61

53 Milirrpum at 267: “[T]he social rules and customs of the plaintiffs …shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which ... was remarkably free from the vagaries of personal whim or influence. If ever a system could be called `a government of laws, and not of men', it is that shown in the evidence before me.” 54 Worcester v Georgia at 544-545: “[T]he King granted charters to companies of his subjects … They purport, generally, to convey the soil from the Atlantic to the South Sea. ... The extravagant and absurd idea that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea did not enter the mind of any man.” 55 Mabo at 37 per Brennan J: “In a settled colony in inhabited territory, the law of England was not merely the personal law of the English colonists; it became the law of the land, protecting and binding colonists and indigenous inhabitants alike and equally.” See also footnote 18. 56 Forms of legal pluralism were the norm in conquered and ceded colonies: see Griffiths op cit, and Hooker MB, Legal Pluralism: an Introduction to Colonial and Neo-Colonial Law (Oxford: Clarendon Press 1975). 57 There are early instances where Australian courts did not apply English law to actions between aboriginal people, even aboriginal people from different groups: R v Ballard (1829) per Forbes CJ: “ I know of no principle of municipal or national law, which shall subject the inhabitants of a newly found country, to the operation of the laws of the finders, in matters of dispute, injury, or aggression between themselves” and per Dowling J: “ until the aboriginal natives of this country shall consent … to the interposition of our laws …for acts committed by themselves upon themselves, I know of no reason human, or divine, which ought justify us in interfering with their institutions even if such interference were practicable”. Similarly R v Bonjon [1841] (1998) 3 AILR 417 at 425 per Willis J; Kercher B, “R v Ballard, R v Murrell and R v Bonjon” (1998) 3 AILR 410. Lendrum S, “The Coorong Massacre: Martial Law and the Aborigines at First Settlement” (1977) 6 Adelaide L Rev 26, refers to similar decisions by Cooper J of the South Australian Supreme Court in 1840. 58 R v Murrell (1836) 1 Legge 72 (SCNSW); similarly R v We-War (1842) Quarter Sessions, WA ; Hunter A, “The Boundaries of Colonial Criminal Law in Relation to Inter-Aboriginal Conflict ('Inter Se Offences') in Western Australia in the 1830s-1840s” (2004) 8 Aust J Legal History 215. 59 R v Williams [1995] 2 CNLR 229 (BCCA): “After [the colony of British Columbia was formed in 1858] Aboriginal customs, to the extent they could be described as laws before the creation of the colony ... ceased to have any force, as laws, within the colony.” 60 In New Zealand some Maori law was recognized on a legislative basis, the first being the Native Exemption Ordinance 1844 (NZ). The Resident Magistrates Act 1867 (NZ) provided that in disputes involving only Mäori, the Magistrate was to be assisted by two Mäori chiefs as Native Assessors,

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The introduction of English law did not thereby give the courts in England jurisdiction to deal with all matters arising within colonies. Only the King in Council, and therefore the judicial committee of the Privy Council, had this jurisdiction. In settled colonies, Supreme Courts were set up with jurisdiction to deal with all matters arising under the introduced law. 62

(c) The Continuity Doctrine: pre-existing rights continue as the common law right of native title

As there is only one law in Australia, “rights” under traditional law can only continue as rights to the extent Australian law recognizes them. 63 English law, adapted to the conditions of the infant colony, recognized native title, because the common law contained a continuity doctrine which dictated the immediate translation of pre-existing rights to land into the common law right of native title. 64 Therefore Privy Council, Canadian, New Zealand and US jurisprudence all hold that interests in land pre-existing the acquisition of sovereignty, and introduction of English law, are recognised by the introduced law, without the need for Crown recognition of those rights. 65 An alternative theory, the need for express recognition of pre-existing rights – the recognition doctrine –has been rejected. 66 Australian jurisprudence has adopted the continuity doctrine: 67

with the case to be determined according to equity and good conscience: Law Commission, Study Paper 9 op cit. 61 Canadian jurisprudence sees Aboriginal rights as rights “incorporated” into the common law, thus Mitchell v MNR at [61] per McLachlin CJ Gonthier, Iacobucci, Arbour and LeBel JJ: “This argument [recognition of an Aboriginal right to international trade] finds its source in the doctrine of continuity, which governed the absorption of aboriginal laws and customs into the new legal regime upon the assertion of Crown sovereignty over the region. As discussed above, this incorporation of local laws and customs into the common law was subject to an exception for those interests that were inconsistent with the sovereignty of the new regime.” 62 While the New South Wales Court Act 1787 (UK), 27 Geo III c.2 created a court of criminal jurisdiction, the 1787 Letters Patent purported to confer authority to set up civil courts. A Supreme Court with civil jurisdiction was set up immediately, and later validated by the New South Wales Act 1823 (UK), 4 Geo IV c.96. 63 Mabo at 59, 61 per Brennan J; Wik at 237-238 per Kirby J; Yarmirr at [175] per McHugh J (diss): Mabo “did not create a dual system of laws. Rights and interests possessed under the traditional laws or customs of the Aboriginal peoples and Torres Strait Islanders are not per se enforceable under the Australian legal system. They are enforceable only to the extent that the common law or statute recognises and gives effect to them”. 64 Why the continuity doctrine does not similarly treat the translation of aboriginal rights generally into common law rights remains unresolved in Australian jurisprudence. 65 US: Sante Fe at 347; New Zealand: Symonds at 390-91; Canada: St Catherine's at 58, Guerin at 377- 78; PC (African Cases) Re Southern Rhodesia at 234; Amodu Tijani [1921] 2 AC 399 at 404 66 Most writers argued that the continuity doctrine was the better approach: Slattery Thesis 50-59; McNeil K, Common Law Aboriginal Title (Oxford: Clarendon Press, 1989) [McNeil Common Law] 162-179. 67 Yarmirr per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [41]: “native title rights and interests survived acquisition of sovereignty and .. an express act of recognition by the new Sovereign was not necessary”. Similarly Mabo at 57 per Brennan J; 97-98 per Deane and Gaudron JJ; 182-83 per Toohey J.

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However, a line of authority represented by In re Southern Rhodesia 68 , Amodu Tijani, Guerin, Calder and Delgamuukw is more persuasive and should be followed. This so called doctrine of continuity was exemplified by Lord Sumner in the Privy Council in In re Southern Rhodesia :

“(U)pon a conquest it is to be presumed, in the absence of express confiscation or of subsequent expropriatory legislation, that the conqueror has respected (private property rights) and forborne to diminish or modify them”. 69 (full citations omitted)

While the introduction of English law is often seen as an expression of “tender concern” 70 for English settlers, a decision to introduce English law is also a decision to protect the rights of Aboriginal people as common law rights, rights arising under the former lex loci no longer being enforceable against the Crown, or its servants. 71 A decision to apply English law to a colony is a decision to afford the protection of the law equally to all inhabitants. 72 This protection is the full protection of all appropriate English law. 73 In the absence of legislative alteration, the colonial Crown “possesses the same prerogative and the same powers of government that it does over its other subjects” 74 in England.

(d) English law, modified to fully respect native title, becomes Australian law

A notion of full respect for native title is embodied in the acquisition of sovereignty, and subsequent introduction of English law. Full respect therefore precedes and shapes the basis on which English law was introduced. The

68 In Re Southern Rhodesia [1919] AC 211. 69 Mabo at 183-184 per Toohey J. 70 Mabo at 35 per Brennan J: “The tender concern of the common law of England for British settlers in foreign parts led to the recognition that such settlers should be regarded as living under the law of England if the local law was unsuitable for Christian Europeans”. 71 See Mostyn v Fabrigas cited footnote 29. 72 Campbell v Hall (1774) 1 Cowp 204 at 208: “the law and legislative government of every dominion, equally affects all persons and all property within the limits thereof; and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the law of the place. An Englishman in Ireland, Minorca, the Isle of Man, or the plantations, has no privilege distinct from the natives.” Similarly Mabo at 37 per Brennan J. 73 Henderson J, “Mikmaw Tenure in Atlantic Canada” (1995) 18 Dal LJ 196 at 198: “The Míkmaw Compact, the inherited British Statutes of Frauds [1677], the 1761 Instructions [to Governors], and the 1763 Proclamation [all] protected the Aboriginal “lands, Liberties and properties” from any new settlements, interference or encroachment by colonial legislative assemblies, executive council, and the colonialists.” (footnotes omitted). Mabo at 39 per Brennan J: “ [i]t would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty’s indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands.” 74 Kielley v Carson (1842) 4 Moo PC 63, 84: “To such a colony… the settlers from the mother- country carried with them … the same laws and the same rights, unless they have been altered by parliament; and on the other hand, the Crown possesses the same prerogative and the same powers of government that it does over its other subjects”.

page 44 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title settlement doctrine dictated that only suitably modified English law was received into the Australian Colonies:

the common law which the settlers brought with them was ..”only so much of it ... as was ‘reasonably applicable to the circumstances of the Colony’”. That rule was itself a common law rule and the Crown had no prerogative right to override the common law by executive act. 75 (citations omitted)

The common law is “the ultimate constitutional foundation in Australia”. 76 Mabo held that the introduced law did not contain a doctrine of absolute Crown ownership of land, and did contain a doctrine of native title. Respect for pre- existing rights, as common law rights, underlies the way the entire English law of property (including the doctrine of tenure and the doctrine of estates) was received into the Australian colonies as Australian law.

By legal fiction, the Crown in England possessed absolute ownership of land (allodial title) and from its allodial title granted lesser interests, such as the estate in fee simple. 77 The fiction of Crown allodial title is not applicable to the circumstances of a colony with pre-colonial inhabitants: it is inconsistent with the basis on which colonial sovereignty was required, with the continuity doctrine, and with the common law principle of equality before the law, 78 in denying pre- colonial inhabitants their property rights. Absolute Crown ownership cannot exist by fiction in Australia, Canada, New Zealand or the USA and this is what the jurisprudence has held. 79 If the Crown is to grant an interest out of its allodial title, the Crown must first acquire allodial title. As the New Zealand Court of Appeal stated:

starting with the English common law, unmodified by New Zealand conditions (including Maori customary proprietary interests) [is an] …error. 80

This is because, from the outset:

75 Yarmirr at [41] per Gleeson CJ, Gaudron, Gummow and Hayne JJ citing Blackstone Commentaries and Mabo. Roberts-Wray op cit at 626: “when English law is in force in a Colony, either because it is imported by settlers or because it is introduced by legislation, it is to be applied subject to local circumstances; and, in consequence, English laws which are to be explained merely by English social or political conditions have no operation in a Colony.” 76 Gummow J in Wik at 182: “To the extent that the common law is to be understood as the ultimate constitutional foundation in Australia, there was [as a result of Mabo] a perceptible shift in that foundation, away from what had been understood at federation.” 77 The holder of allodial title does not receive ownership by grant out of a superior or larger interest. The holder of allodial title does not provide service to, or acknowledgement of, any superior. In the absence of legislative infringement, it is an absolute and unqualified right to the land. For a fuller discussion of allodial title, see §5.1(b) Allodial title. For the proposition that the Crown in England has acquired allodial title by legal fiction, see §6.1(c) Acquisition of allodial title. 78 §3.3 The principle of equality before the law dictates the recognition of native title. 79 Mabo at 57-58 Brennan J; Chapter 2 - Comparative jurisprudence: native title as a property right. 80 Ngati Apa at [13] per Elias CJ.

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[the] common law of New Zealand as applied in the courts differed from the common law of England because it reflected local circumstances….In British territories with native populations, the introduced common law adapted to reflect local custom, including property rights. [And thus] …the principle of respect for property rights [of the aboriginal occupants] until they were lawfully extinguished was of general application. 81

New Zealand law differed from English law as the latter did not recognise Maori customary title. 82 English law was modified to the extent that it was necessary to recognize Maori title and Maori rights:

The common law as received in New Zealand was modified by recognised Maori customary property interests. If any such custom is shown to give interests in foreshore and seabed, there is no room for a contrary presumption derived from English common law. The common law of New Zealand is different. 83

Thus Brennan J in Mabo accepted that native title was recognized even if inconsistent with the common law. 84

The proposition that the Crown’s right to land does not disturb the “presumptive title” of the inhabitants has been stated in Mabo 85 and in Privy Council and Canadian jurisprudence. 86 The New Zealand Court of Appeal has stated:

Any presumption of the common law inconsistent with recognition of customary property is displaced by the circumstances of New Zealand. 87

A presumptive native title serves to counteract presumptions, assumptions and fictions that the Crown has allodial title to colonial land. Australian law cannot contain presumptions, assumptions and fictions inconsistent with the recognition of native title.

(e) Native title includes rights unknown to the common law: a proposition of full respect

81 Ngati Apa at [17] also [86] per Elias CJ, [183] per Tipping J. 82 Ngati Apa at [ 212] per Tipping J: “I have deliberately referred to the common law of New Zealand in this context to distinguish it from the common law of England which of course lacked any ingredient involving Maori customary title or land.” 83 Ngati Apa at [86] per Elias CJ. 84 Mabo at 59 per Brennan J: “The general principle that the common law will recognize a customary title only if it be consistent with the common law is subject to an exception in favour of traditional native title.” Similarly Van der Peet at [268] per McLachlin J (diss). 85 Mabo at 102 per Deane and Gaudron JJ: “As has been seen, the doctrine of presumptive common law native title, which has long been recognized by the common law, is applicable to a settled British Colony.” 86 Guerin at 378 set out in footnote 7. 87 Ngati Apa at [84] per Elias CJ: “Any presumption of the common law inconsistent with recognition of customary property is displaced by the circumstances of New Zealand”.

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In describing what pre-existing rights were recognized as native title, the judges in Mabo used the expression “rights and interests” over 70 times. Section 223(1) of the Native Title Act defines “native title” in terms of “communal group or individual rights and interests”. The expression “rights and interests” is a composite phrase, 88 echoing the formula of “laws and customs”. This is part of the perception of difference by reference to full respect. It is a recognition that interests, rather than a narrower conception of rights, are what the common law recognises and protects. The references to “rights and interests” under “laws and customs” obviate the debate about whether a claim is a “right” under a “law”. 89

In Mabo, Brennan J 90 and Deane and Gaudron JJ and Toohey J all held that native title included the recognition of rights and interests unknown to the common law: rights not necessarily analogous to common law rights “are to be assumed to be fully respected.” 91 Comparative jurisprudence also holds that native title includes the recognition of “rights and interests”,92 including those “unknown” to the common law. 93 Deane and Gaudron JJ, in asking themselves “What kinds of pre-existing native interests were respected and protected by the common law?” answered:

The courts will, their Lordships said “assume that the traditional interests of the native inhabitants are to be so respected “even though those interests are of a kind unknown to English law.” That approach is supported by other authority and by compelling considerations of justice. It should be accepted as correct. 94 (footnotes omitted)

To provide full respect for traditional interest that is being recognised, one begins with the examination of traditional interest, not its common law expression. 95

88 A composite phrase is given a composite meaning and it does not incorporate within it the sub- definition of specific words. For example, R v Oxfordshire County Council: ex parte Sunningwell Parish Council [2000] AC 335 at [37] per Lord Hoffmann: “As a matter of language, I think that “sports and pastimes” is not two classes of activities but a single composite class which uses two words in order to avoid arguments over whether an activity is a sport or a pastime. The law constantly uses pairs of words in this way. There is no suggestion in native title jurisprudence to date that “rights and interests” in s.223(1) of the Native Title Act is other than a composite term. 89 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 442 [Yorta] at [41] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “The Native Title Act refers to traditional laws acknowledged and traditional customs observed. Taken as a whole, that expression, with its use of “and” rather than “or”, obviates any need to distinguish between what is a matter of traditional law and what is a matter of traditional custom.” 90 Mabo at 61 per Brennan J quoting Adeyinka Oyekan v Musendiku Adele. 91 Mabo at 85 per Deane and Gaudron JJ. 92 §2.2(a)(i) New Zealand: Maori title; §2.2(a)(ii) Canada: Aboriginal title; §2.3 Aboriginal rights. 93 Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR at 880: “even though those interests are of a kind unknown to English law”; Sunmonu v Disu Raphael [1927] AC 881 at 883-884; Sakariyawo Oshodi v Moriamo Dakolo [1930] AC 667 at 668-669 94 Mabo at 85 per Deane and Gaudron JJ. 95 Ward at [94] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “There is much scope for error if the examination begins from the common law expression of those rights and interests. Especially is that so if a portmanteau expression used to translate those rights and interests”.

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Yorta 96 held that both Mabo and the Native Title Act proceeded from the basis that “rights and interests” under traditional laws and customs “may not, and often will not, correspond with [common law] rights and interests”. 97 What is to be respected is not limited to conceptions of either “property” or “real property”. 98

(f) Conclusion

The continuity doctrine is the explanation of what happened to pre-colonial property rights after sovereignty. On the basis that they were to be fully respected, they became common law rights under Australian law. Those rights are enjoyed “in exactly the same way as the law would protect other Australians”. 99

96 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 442. 97 Yorta at [40] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; similarly Yarmirr at [13]. 98 Yarmirr at [12] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “Those rights and interests may have some or all of the features which a common lawyer might recognise as a species of property. Neither the use of the word “title” nor the fact that the rights and interests include some rights and interests in relation to land should, however, be seen as necessarily requiring identification of the rights and interests as what the common law traditionally recognised as items of “real property”. Still less …to constitute “property”.” 99 Wik at 251 per Kirby J.

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§3.3 The principle of equality before the law dictates the recognition of native title

The idea of equality before the law has a long history in legal reasoning 100 and courts regularly refer to “the principle of equality before the law”. 101 Equality means freedom from discrimination. 102 However, the “common law guarantees equality before the law but does not … prevent discrimination in the enactment of laws”. 103 In Mabo, Brennan J stated that the common law principle of equality before the law dictated the recognition of native title. In Mabo 1 the High Court held that the singling out of native title for legislative extinguishment offended the statutory principle of equality before the law that was contained in s.10 of the Racial Discrimination Act 1975 (Cwth) [ RDA ], in denying the Meriam people their human right/legal right to own and inherit property rights to land. 104 These two propositions, examined in this section, show that native title is respected as a property right, and that a doctrine of absolute Crown ownership of land (which axiomatically denies full respect to native title) is not part of Australian law because it is inconsistent with the common law principle of equality before the law, in denying only native title holders the enjoyment of their property rights. 105

(a) The doctrine of absolute Crown ownership as a denial of the common law principle of equality before the law

In Mabo , the common law principle of equality before the law was used by Brennan J as the justification to reject the authority of cases which had

100 The idea is usually traced to Aristotle, Nicomachean Ethics, trans WD Ross (Oxford, Clarendon Press 1908) (Book V): “Injustice arises when equals are treated unequally and also when unequals are treated equally.” Westen P, Speaking of Equality: An Analysis of the Rhetorical Force of 'Equality' in Moral and Legal Discourse (Princeton: Princeton University Press, 1990) discusses the complexity and potential confusion in various egalitarian norms. 101 Matadeen v Pointu [1999] 1 AC 98 (PC) at 108: “The principle that equality before the law requires persons to be uniformly treated, unless there is some valid reason to treat them differently, is one of the building blocks of democracy and necessarily permeates any democratic Constitution. Indeed their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour”. Ward at [575] per Kirby J: “the principle of equality of the rights of all Australians before the law”. Maciantonio v Queen (1994) 183 CLR 58 at 73 per McHugh J. Fingleton v R (2005) 216 ALR 474 at [168] per Kirby J : “In the event of a real doubt, legislation will normally be construed so as to uphold such equality and to confine the immunity. This follows on the assumption that, had the legislature intended to depart from such an interpretation, it would have said so in plain terms. This principle is but one instance of the general approach of the courts to construe statutes favourably to the observance of fundamental rights and duties, of which equality before the law is one.” 102 A v Secretary of State for the Home Department [2003] 2 WLR 564 (HL) at [7]: ‘‘the right not to be discriminated against is one of the most significant requirements of the rule of law “. 103 Choudhury T and Moon G, “Complying With Its International Human Rights Obligations: The United Kingdom and Article 26” [2003] EHRLR 283 at 286. 104 Mabo 1 at 218 per Brennan, Toohey and Gaudron JJ. 105 The argument that the recognition of native title is a manifestation of the principle of equality before the law has previously been made: Bartlett Equality before the Law op cit; similarly Bartlett RH, “Native Title: From Pragmatism to Equality Before the Law’ (1995) 20 Melbourne ULR 282.

page 49 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title established the “doctrine of exclusive Crown ownership of all land in the Australian colonies”: 106

Judged by any civilized standard, such a law is unjust …107

To maintain the authority of those cases would destroy the equality of all Australian citizens before the law. The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius . .. Moreover, to reject the theory that the Crown acquired absolute beneficial ownership of land is to bring the law into conformity with Australian history. 108

The theory of absolute Crown ownership depended on a “discriminatory denigration of indigenous inhabitants, their social organization and customs”, 109 in denying that Aboriginal people were socially sophisticated enough to have conceptions of laws or property rights. The basis of the theory was “false in fact and unacceptable in our society”. 110

It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands. 111

A doctrine of absolute Crown ownership by the acquisition of sovereignty denies only native title holders enjoyment of their common law rights in land, and therefore denies native title holders the equal enjoyment of their rights under Australian law. Accordingly, the fictional presumption of Crown allodial title did not form part of Australian law. This means two things: allodial title must be acquired, and while Crown ownership of land may be recognized against persons who derive their interests from Crown grant, there cannot be fictional Crown ownership of land against native title holders . Comparative jurisprudence has made this point clear:

It seems to flow from the very terms in which the principle, “that the Queen is the only source of title” … [is expressed that] notwithstanding the rights of the native race, and of course subject to such rights, the Crown, as against its own subjects, had the full and absolute dominion over the soil, as a necessary consequence of territorial jurisdiction. 112

106 Mabo at 28. Cases set out in Chapter 1 footnote 2. 107 Mabo at 29-30. 108 Mabo at 57-58. 109 Mabo at 40. 110 Mabo at 40. 111 Mabo at 42. 112 Symonds at 390-91 per Chapman J.

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The existence of native title does not deny the relevance of the doctrine of tenure to explain the meaning of rights held under Crown grant, as between the Crown and the grantee. But native title makes unsuitable the fictional assumption of Crown allodial title against native title holders, against those not deriving their rights to land by Crown grant.

Native title holders have common law rights to land by reason of the continuity doctrine, which recognizes pre-sovereign rights as post-sovereign common law rights. To adopt the fiction of absolute Crown ownership (allodial title) is to deny “the equality of all Australian citizens before the law”, in denying only native title holders their common law rights to land.

(b) Denial of native title as a denial of the right to enjoy property contrary to the guarantee of equality before the law in the RDA

In Mabo 1 the High Court looked at whether the legislative extinguishment of native title offended the principle of equality before the law, as contained in s.10 of the RDA :

(1) If, by reason of, or of a provision of, a law … persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. (2) A reference in sub-section (1) to a right includes a reference to a right of a kind referred to in Article 5 of the [International Convention on the Elimination of All Forms of Racial Discrimination].

Article 5 states:

States Parties undertake to prohibit and to eliminate racial discrimination in …. the enjoyment of the following rights:…

(v) The right to own property alone as well as in association with others; (vi) The right to inherit …

The Queensland Coast Islands Declaratory Act 1985 (Qld) provided:

3. …upon the islands being annexed to and becoming part of Queensland…

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(a) the islands were vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever and became waste lands of the Crown ..; (c) the islands could thereafter be dealt with as Crown lands for the purposes of Crown lands legislation ….

5. No compensation was or is payable … (b) in respect of any right, interest or claim alleged to have existed prior to the annexation of the islands to Queensland or in respect of any right, interest or claim alleged to derive from such a right, interest or claim…

Section 3 of the Queensland Act provided a clear and plain intention to vest a title to the islands in Queensland, and to extinguish native title, and s.5 provided a clear and plain intention to deny compensation for the extinguishment of native title. This is the way the High Court interpreted the legislation. Wilson J held that the Queensland Act was valid to effect this purpose. The majority held that the effect of the Queensland Act was to deny equality before the law to the Miriam people with respect to their right to own or inherit property, and was therefore discriminatory and inconsistent with the RDA and invalid by reason of that inconsistency pursuant to the “inconsistency of laws” test, set out in s.109 113 of the Constitution. 114 Brennan, Toohey and Gaudron JJ described the matter thus:

The question which s.10 poses in the present case is whether, under our municipal law, the Miriam people enjoy the human right to own and inherit property - a right which includes an immunity from arbitrary deprivation of property - to a more limited extent than other members of the community. (“Property” in this context must embrace rights of any kind in or over the Murray Islands.) …A person who is a member of the Miriam people is entitled to own and inherit those property rights in the same way and to the same extent as any other Australian. ...

But the 1985 Act destroys the traditional legal rights in and over the Murray Islands possessed by the Miriam people (and particularly by the plaintiffs) and, by an arbitrary deprivation of that property, limits their enjoyment of the human right to own and inherit it.115

As a result of the Queensland Act, the Miriam people enjoyed their right to own and inherit property to a more limited extent than others enjoyed the same right.

113 Section 109 provides: “When law of a State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” Mabo 1 at 214 per Brennan, Toohey and Gaudron JJ: “The next question is whether the 1985 Act is inconsistent with the Racial Discrimination Act and is therefore ineffective by reason of s.109 of the Constitution.” 114 The Australian Constitution is clause 9 of the Commonwealth of Australia Constitution Act 1900 (UK). 115 Mabo 1 at 218 per Brennan, Toohey and Gaudron JJ; similarly Deane J at 230-231: The Queensland Act extinguished “only traditional proprietary rights”.

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They were, in the classic phrase of discrimination jurisprudence, “singled out”, 116 and “arbitrarily deprived” of their property right.

Subsequently in the Native Title Act Case 117 the High Court ruled that the State Land (Titles and Traditional Usage) Act 1993 (WA) was invalid as it was inconsistent with the RDA in denying equality before the law. The WA Act extinguished native title and replaced it with statutory “rights of traditional usage” under s.7. The question before the Court was whether the statutory rights conferred by s.7 ensured “the same security of possession and enjoyment” 118 as native title rights protected by the RDA . The statutory rights did not, as they could be more easily diminished under WA legislation than native title. 119 Both Mabo 1 and the Native Title Act Case involved legislative discrimination contrary to the guarantee of equality before the law in the RDA . In both cases only rights possessed by native title holders were extinguished or diminished.

(c) The dictates of substantive equality

One foundation of the recognition of native title is that it reflects principles of both formal and substantive equality before the law, conceptions which do not completely parallel the distinction between the common law principle of equality before the law, and the principle of equality embodied in the RDA . The concept of substantive equality addresses factual difference.

(i) Formal equality and substantive equality

Formal equality

Formal equality means treating each person or thing the same, regardless of any difference in that person’s or thing’s relevant circumstances. It is a narrow conception, applicable to situations where the people or things being compared are, in relevant terms, similar. The primary application of formal equality is as a rule of consistency (or lack of arbitrariness) in the application of a given rule or principle. Formal equality does not offer a view as to whether a rule offends wider conceptions of justice. The common law principle of equality before the law is generally interpreted as a rule of formal equality.

[The reach of equality] is limited because its primary concern is not with the content of the law but with its enforcement and application alone. The

116 Mabo 1 at 231 per Deane J. 117 Western Australia v Commonwealth (1995) 183 CLR 373 [Native Title Act Case] 118 Native Title Act Case at 440 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ. 119 Native Title Act Case at 437 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ: “If a law of a State provides that property held by members of the community generally may not be expropriated except for prescribed purposes or on prescribed conditions (including the payment of compensation), a State law which purports to authorise expropriation of property characteristically held by the 'persons of a particular race' for purposes additional to those generally justifying expropriation or on less stringent conditions (including lesser compensation) is inconsistent with s 10(1) of the [RDA].”

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Rule of Law is satisfied as long as laws are applied or enforced equally, that is, even-handedly, free from bias and without irrational distinction. The rule of law requires formal equality which prohibits laws from being enforced unequally, but it does not require substantive equality. .. It constrains, say, racially-biased enforcement of laws…120

The use of the common law principle of equality in Mabo to deny the existence of a common law doctrine of absolute Crown ownership is the invoking of a conception of equality going beyond the formal equality.

Substantive equality

Formal equality has limited application when the things being compared are different:

To treat unequal matters differently…is not only permitted but required . The issue is whether the difference exists. Accordingly, not every different treatment can be justified by the existence of differences, but only such as corresponds to the differences themselves, namely that which is called for by the idea of justice. 121

What substantive equality requires has two aspects: that things not be treated differently under the guise of a rule which purports to apply to all, but in fact singles out only the rights of a few; and that things not be treated differently on the basis of an arbitrary or invidious distinction.

Infringing substantive equality by singling out native title

Having determined equality of treatment is justified, substantive equality looks beyond legal form to the actual effect of laws on persons and their rights. 122 One indication that substantive equality may be denied is a law that “applies” to all, but affects only the rights of a small section of the community. 123 Immediately following the acquisition of sovereignty and commencement of Australian law, only native title holders had rights in land under Australian law. A common law doctrine, or legislation, extinguishing all legal rights in land at or immediately after sovereignty can be argued to fall within a conception of formal equality. 124 However, such a doctrine or law affects only the rights of native title holders, it

120 Jowell J, "Is Equality a Constitutional Principle?" (1994) 47 CLP 1 at 4. 121 South West Africa Case (Second Phase) (ICJ Reports, 1966) at 305-6, quoted by Brennan J in Gerhardy v Brown (1985) 159 CLR 70 at 129. 122 Macklem P, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) at 126. 123 Vanzant v Waddel 10 Tenn (2 Yet) 260, 269 (1829): “intended to affect particular individuals alone, or to deprive them of the benefit of the general laws … to deprive a corporation or an individual of rights …to the equal benefits of the general and public laws of the land”. Lehman v McBride 15 Ohio St 573, 606-07 (1863) legislation in which “operation is limited to . . . certain classes of persons”. 124 This was the view of Wilson J in Mabo 1 at 206.

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“singles out” 125 native title holders. The common law doctrine of absolute Crown ownership, like the Queensland Act, denied only native title holders like treatment in the enjoyment of their rights to own and inherit property:

the practical operation and effect of the [Queensland] Act would be to extinguish only traditional proprietary rights and interests whose ultimate source predated annexation while leaving intact rights and interests whose ultimate source lay in the European law which became applicable upon annexation. 126

Infringing substantive equality by the making of arbitrary distinctions

A differentiation of treatment will not constitute discrimination if having regard to the objectives and purposes of equality before the law, they are appropriate. What is prohibited is arbitrary or invidious distinctions. 127 Once one moves beyond the narrow concept of formal equality as like treatment, it is necessary to justify criteria by which to determine whether like or unlike treatment is appropriate. Whether to equate the property right of native title to other property rights or to common law conceptions of title or ownership, or whether to deny it that equality, is examined in Chapter 4- The denial of full respect in the conceptualisation of native title .

(ii) Native title as a property right protected by a principle of substantive equality before the law

Native title is property right with a different content to a property right sourced under the doctrine of tenure. However, with respect to the equality of treatment of legal rights, and specifically the rights to own and inherit property, this difference is not a relevant difference, and therefore not a basis for making a distinction between native title and other property rights. In Ward the High Court made the following point:

Because no basis is suggested in the Convention or in the RDA for distinguishing between different types of property and inheritance rights, the RDA must be taken to proceed on the basis that different characteristics attaching to the ownership or inheritance of property by persons of a particular race are irrelevant to the question whether the right of persons of that race to own or inherit property is a right of the same kind as the right to own or inherit property enjoyed by persons of another race....the Court has rejected the argument that native title can be treated differently from other forms of title because native title has different characteristics from

125 Mabo 1 at 231 per Deane J: “The practical operation and effect the Act are to single the Torres Strait Islanders (including the Miriam people) for discriminatory treatment in relation to traditional proprietary rights and interests to and in their homelands”. 126 Mabo 1 at 230-31 per Deane J. 127 Adarand Constructors Inc v Pena 515 US 200, 222 (1995) per Stevens J (diss) “Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority.”

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those other forms of title and derives from a different source. This conclusion about the operation of the RDA should not now be revisited. 128

The issue of substantive equality revolves around the question of whether differences in treatment are relevant, whether they "can be justified by the existence of differences [in the things] themselves", 129 and whether the making arbitrary or invidious distinctions is involved. The principle set out in Ward with respect to itself the application of the guarantee of equality before the law under the RDA is not a principle unique to the RDA but part of wider equality conceptions contained in the common law principle of equality before the law relied on in Mabo . What is required is that some aspect of the property right of native title suggest a relevant basis for distinguishing “the right to own or inherit property”, as enjoyed by all holders of property, from the same right as enjoyed by native title holders . Australian jurisprudence has suggested that a relevant distinction might lie in native title as a property right not sourced in actual or presumed Crown grant. Whether native title enjoys an equality of treatment with other common law rights is examined in Chapter 6 - The denial of full respect in the extinguishment of native title .

(iii) Native title as a right enjoyed only by Aboriginal people?

Native title is not a right enjoyed only by Aboriginal people. A jurisprudence that conditions the existence of a right on proof of Aboriginal authenticity can be described as one involving rights that arise “from the fact that aboriginal people are aboriginal”. 130 This will be the case where the Crown has exercised executive or legislative power, or engaged in a course of conduct, whereby it has recognised or granted to Aboriginal peoples specific rights not conferred on non- Aboriginal people. In Australia no such recognition of rights has taken place.

While the lex loci that pre-existed the imperial assertion of sovereignty was the lex loci of a specific Aboriginal community, individuals from outside the community, including non-Aboriginal persons, might acquire rights under that law. 131 The continuity doctrine dictates that all pre-sovereign rights with respect to land, of both Aboriginal and non-Aboriginal people, were recognised by Australian law. In order for native title rights to be recognized by Australian law, Aboriginal communities must have remained connected to their traditional lands since sovereignty, and must have observed their traditional laws and customs with respect to that land. As native title recognises only rights and interests that have survived 200 years of dispossession and assimilation, it follows that the majority of Aboriginal people have no native title rights. Native title is possessed by only

128 Ward at [121] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 129 Brennan J in Gerhardy v Brown (text accompanying a footnote 119). 130 Van der Peet at [19] per Lamer CJ and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. Slattery, Understanding Aboriginal Rights , at 776: rights held by “Indians qua Indians”. 131 There is no doubt that, post-sovereignty, Aboriginal individuals from outside the relevant Aboriginal community, and non-Aboriginal individuals, can acquire rights and obligations under traditional law. The transcript of Jango v Northern Territory records two instances of non- Aboriginal right acquisition: [P2926-2928] and [P1610-1612].

page 56 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title some Aboriginal people. Native title is not a right enjoyed by reason of Aboriginality.

(d) Conclusion: equality before the law as a basis for the recognition of native title

Native title is the recognition of rights shaped by Aboriginal difference. The recognition of native title results, firstly, from the repudiation of the doctrine of absolute Crown ownership because this doctrine denies substantive equality before the law to native title holders in the enjoyment of their property rights, and, secondly, from the acceptance of the continuity doctrine, that pre-existing rights survived the acquisition of sovereignty as legal rights. Once the existence of a right is determined, both the common law principle of equality before the law and the RDA dictate an equal enjoyment of that right. Australian law holds that native title, as a property right, cannot be treated differently to “other forms of title” in the absence of some basis “distinguishing between different types of property”. 132

132 Ward at [121] per Gleeson CJ, Gaudron, Gummow and Hayne JJ see footnote 128.

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CHAPTER 4 - THE DENIAL OF FULL RESPECT IN THE CONCEPTUALISATION OF NATIVE TITLE ______

A standard of full respect for pre-existing interests in land dictates that native title, as a right under Australian law, is a meaningful form of title to land. However, Australian jurisprudence has conceptualised native title rights as lesser.

§4.1 Native title: the translation of traditional rights into common law rights

The task Australian jurisprudence has set itself is not the recognition of a community’s effective assertion of exclusive occupation against the whole world, but the process of translating into common law rights, rights and interests perceived to exist under traditional law which connect the members of an Aboriginal community to land. According to Australian jurisprudence, this task involves three steps:

• Perceiving traditional rights and interests; • Identifying those traditional rights and interests that exist in an intersection between the traditional legal system and the Australian legal system, and are observed and acknowledged today; • Translating the rights and interests in the intersection into rights under Australian law.

§4.2 The attempt to perceive the existence of traditional rights on the basis of full respect

Before Australian law can translate traditional rights, it must be able to perceive those rights. It must have a strategy to understand difference. This strategy is embodied in the language of full respect. Australian jurisprudence looks to rights and interests under a normative system (of traditional laws and customs ), though such rights and interests are not necessarily known to the common law, or consistent with the common law. Australian jurisprudence attempts to perceive traditional rights and interests, and give them meaning and weight, on the basis of full respect for the Aboriginal perspective.

§4.3 The intersection between normative systems: the denial of full respect for native title as a common law right

Native title is an attempt at reconciling two independent legal and social traditions, and this reconciliation is located in the “intersection” between two living systems: the Australian legal system and the Aboriginal normative system.

The intersection determines which traditional rights will be translated into rights under Australian law in two ways. The first way is to affirm the primacy of the common law perspective: traditional rights incapable of expression in common law terms cannot be recognized as native title. Thus, what emerges from the

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intersection is, by definition, a common law right. However, the intersection operates in a second way, to deny full respect to the common law expression of traditional rights, by subjecting the translation process to a rhetoric that contextualises native title as a subordinate common law right, in the form of three newly created rules of right-recognition: a doctrine of acceptable custom; the “skeletal principle”; and the complementary “antithetical rights” principle. These principles of right recognition have resulted in traditional rights being either denied common law recognition or being seen as lesser rights. Further, a doctrine of frozen rights limits the content of native title as a living right.

§4.4 Native title: the failure to search for meaningful title

Full respect requires that once traditional rights are perceived to exist, they are to be faithfully translated into the most apt common law right. Locating native title within the common law tradition, rather than in a plural or mixed system of law, means that the expression of the common law right of native title is guided by common law conceptions of “property”, “title” and “ownership”. Comparative jurisprudence has recognized the communal right to land as ownership or a property right akin to ownership, and sees native title as a true form of title. By contrast, Australian jurisprudence has fragmented the translation of the traditional connection to land into a bundle of rights, and treated native “title” as the accumulation of a series of individual rights to land.

§4.5 The denial of full respect: a conclusion

Full respect for native title as a form of right, title and ownership has been denied in the way Australian jurisprudence has conceptualised native title. While Australian jurisprudence adopts the language of full respect in the perception of the traditional rights that are recognized as native title, the “intersection” between the traditional normative system and the Australian legal system contextualises native title as a lesser form of common law right. As a communal right of exclusionary control, native title enters Australian law as a true form of ownership and title. However, the language of difference, and the metaphor of the bundle of rights, equates native title to a compromised form of ownership and title. Even so, native title remains a series of property rights to land.

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§4.1 Native title: the translation of traditional rights into common law rights

The traditional legal system and the Australian legal system reflect different conceptions of property, as well as different conceptions of rights and duties. The task of Australian law is to translate traditional rights and interests connecting the members of Aboriginal communities to land, into rights under Australian law:

[The] relevant task [of Australian law], is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms. 1

A determination of native title is a determination of rights under Australian law.

Brennan J’s conceptualisation of native title in Mabo was affirmed by the High Court, 2 and incorporated into the Native Title Act .3 The key aspects are:

The term “native title” conveniently describes the interests and rights of indigenous inhabitants in land, whether communal group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants. 4

Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. 5

How is native title as a “title” to land to be reconciled with native title as the translation of all communal, group and individual rights and interests into common law rights? While comparative jurisprudence draws a distinction between Aboriginal title and Aboriginal rights, Australian jurisprudence does not coherently distinguish between “native title” and “native title rights”, with the result that rights akin to ownership are spoken of as if they were as limited as mere land use-rights, part of a bundle of undifferentiated rights.

(a) The initial translation: native title as communal ownership

The High Court in Mabo originally distinguished between “native title” as communal ownership, and other “native title rights” not necessarily amounting to ownership. The order of the Court in Mabo was that:

1 Yarmirr at [89] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 2 Fejo at 128 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 3 Native Title Act s.223, set out in §1.2 An overview of the Australian doctrine of native title 4 Mabo at 57 per Brennan J. 5 Mabo at 59-60.

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the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of [the relevant lands]. 6

In Mabo it was only the “Meriam people” who held the native title right, the content of which was the right of exclusive possession. The various dicta by Brennan J, Deane and Gaudron JJ and Toohey J, all envisaged that only the community would be in exclusive possession of land, and this meant that communal title was a proprietary interest in land. Individuals would have only “usufructuary” interests and these interests did not form part of the native “title” that Mabo recognized:

individual members of the community …enjoy only usufructuary rights … Indeed, it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title. 7

A usufructuary right is the right of “enjoying a thing, the property of which is vested in another, … provided it be without altering the substance of the thing.” 8 In Mabo Brennan J was clear: “indigenous people owned their land”. 9 Deane and Gaudron JJ also saw the communal right as capable of amounting to “ownership”. 10 Toohey J equated native title to fee simple ownership, 11 an approach Brennan J rejected. 12 The Mason CJ was similarly clear in Mabo 1, native title was a right to own land. 13 Brennan J and Deane and Gaudron JJ 14 distinguished between proprietary communal title to land, and individual interests in that land under a system of living communal laws:

6 Mabo at 217: “putting to one side the …land leased to the Trustees of the Australian Board of Missions and those parcels of land (if any) which have validly been appropriated for use for administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and privileges of the Meriam people under native title, 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.” 7 Mabo at 51 per Brennan J 8 Bouvier J, A Law Dictionary (Philadelphia: Childs and Peterson, 1856). Mason v Tritton (1994) 34 NSWLR 572 at 581 per Kirby P: “The term ‘usufructuary right' …commonly conveys the entitlement of an individual to use, and take benefit from, land belonging to another. … and a ‘usufructuary’ is a person who has the usufruct or right of enjoying anything in which he has no proprietary interest.” 9 Mabo at 51: “It would be wrong, …by importing definitions of `property' which require alienability under the municipal law of our society, to deny that the indigenous people owned their land” (footnotes omitted). 10 Mabo at 88: “it may be a community title which is practically ‘equivalent to full ownership’”, and at 89 native title may “approach the rights flowing from full ownership at common law.” 11 Toohey J at 214: it would be “no more beneficial for the plaintiffs to have possessory title to a fee simple estate than to have native title.” 12 Mabo at 75: “As … native title is not a title created by grant nor is it a common law tenure, it may be confusing to describe the title of the Meriam people as conferring “ownership”, a term which connotes an estate in fee simple …Nevertheless, it is right to say that their native title is effective as against the State of Queensland and as against the whole world…”. 13 Mabo 1 at 217-18 per Mason CJ: “the Miriam people enjoy their human right of the ownership and inheritance of property”. 14 Mabo at 88 Deane and Gaudron JJ: “It may be an entitlement of an individual…to a limited special use of land … In contrast, it may be a community title”.

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A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community's lands. 15

Brennan J envisaged individual use rights as “dependent on the community title” 16 and no individual rights were recognized by the Court’s order. In Mabo , the core of communal native title in its common law expression was exclusive possession as against the whole world. Exclusive possession is the foundation for common law notions of “title” and “ownership”. 17

(b) The revised translation: native title as a bundle of rights

High Court discussion of native title as ownership did not survive Mabo ,18 and native title became a bundle of rights. The effect of this change was to create a context in which Aboriginal communities ceased to be seen as owning their land, and therefore the Crown did not have to acquire “ownership” or “title”, it merely had to extinguish rights. The second effect of the bundle of rights approach was that native title became only those individual rights that native title holders could make out.

The Wik majority accepted that native title could be extinguished on the basis of an inconsistency of rights test:

To say that the pastoral leases in question did not confer rights to exclusive possession on the grantees ..[is] to recognise that the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it. …If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees. 19

15 Mabo at 61-62. 16 Mabo at 51: “there is no impediment to the recognition of individual non-proprietary rights that are derived from the community's laws and customs and are dependent on the community title.”. 17 §4.4(c) Native title as title and ownership . 18 Native title is described as “communal ownership” only in Sampi v Western Australia [2005] FCA 777 at [1069] and Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [79]-[80] in both cases by French J. In Ward Aboriginal ownership of land was also left open. At [118] Gleeson CJ, Gaudron, Gummow and Hayne JJ state: “The question which was posed by Dawson J in Mabo 1 of whether native title rights and interests amount to rights of ownership equivalent to the rights of ownership enjoyed by others appears not to have been specifically addressed in the joint judgment in that case.” They then affirm [119]-[121] that there is no basis in the RDA to distinguish native title from other forms of property: see §3.3(c)(ii) Native title as a property right protected by a principle of substantive equality before the law. Similarly at [665] Callinan J noted: “In view of the characteristics of native title … (for example, its fragility and elusiveness), it will be important in due course to decide whether native title rights and interests do amount to rights of ownership enjoyed by others in the community. However …the answer to that question can await another day.” 19 Wik at 132 (the postscript) per Toohey J (agreed to by Gaudron, Gummow and Kirby JJ): Wik at 243 per Kirby J: “Only if there is inconsistency between the legal interests of the lessee (as defined

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As a result of Wik it was assumed that a grant of exclusive possession extinguished native title, and it was held that the grant of statutory rights short of exclusive possession extinguished only inconsistent native title rights. This approach implied some fragmentation of “native title” into individual rights capable of being inconsistent with rights under a statutory lease. The description of native title as a “bundle of rights“20 subject to partial extinguishment was ultimately endorsed by the High Court in Ward ,21 and replaced the conception of native title as ownership. Ward held that the grant of any land use right removed the right of exclusive possession from the bundle of rights that constituted native title.

Once it is accepted that there can be a doctrine of partial extinguishment of native title by grant of inconsistent rights, what remains may be called a bundle of rights. Once the right of exclusive possession is removed, the bundle of use- rights that survives partial extinguishment may look like this:

(a) the right to travel over, move about and to have access to the determination area; (b) the right to hunt, fish and forage on the determination area; (c) the right to gather and to use the natural resources of the determination area such as food, medicinal plants, timber, stone and resin; (d) the right to have access to and use the natural water of the determination area; (e) the right to live on the land, to camp, to erect shelters and other structures; (f) the right to: (i) engage in cultural activities: (ii) conduct ceremonies (iii) hold meetings;

by the instrument of lease and the legislation under which it was granted) and the native title (as established by evidence), will such native title, to the extent of the inconsistency, be extinguished.” 20 It was first used to refer to native title in passing in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 as “the bundle of those rights for which the claimant seeks recognition” at 616, per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ. Fejo at [25] referred to “the bundle of interests we now call native title” and “the rights, which together constitute native title.” Western Australia v Ward (2000) 99 FCR 316 at [109]-[110]: "In our opinion the rights and interests of indigenous people which together make up native title are aptly described as a ‘bundle of rights’. It is possible for some only of those rights to be extinguished by the creation of inconsistent rights by laws or executive acts. Where this happens 'partial extinguishment' occurs.” 21 Ward at [95] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “The metaphor of ``bundle of rights'' which is so often employed in this area is useful in two respects. 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. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land.” At [76] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and at [615] per Callinan J the description of native title is a bundle of rights in Ward (footnote 20) was endorsed.

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(iv) teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; and (v) participate in cultural practices relating to birth and death, including burial rights. 22

Any property conception, including ownership, can be deconstructed into a bundle of rights, and then reconstructed back into a different bundle of rights. But this is not how we think about ownership or title. When we claim a right of ownership or title, we do not do this as a claim for a bundle of specific rights, but as a claim for something larger and more open ended, which, although it can be broken down into its constituent rights, is seen as a whole. The traditional right to land is a complex unity. 23 The development of native title jurisprudence has occurred in the context of the partial extinguishment of native title by pastoral or other statutory leases as the norm, and has thus diverted attention away from recognition that the bundle of rights to control and use land that are native title are equal to or greater than the bundle of rights to control and use land possessed by holders of an estate in fee simple.

22 Griffiths v Northern Territory (No 2) [2006] FCA 1155; similarly Patta Warumungu People (No 2) v Northern Territory [2007] FCA 1386 at [5] (text to footnote 224). 23 §4.2(a) Aboriginal connection to land: a complex unity.

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§4.2 The attempt to perceive the existence of traditional rights on the basis of full respect

Consistently with the principle of full respect, the Australian approach to native title begins with an attempt to perceive the existence of traditional rights and interests by adopting the language of full respect. Attention is paid to the Aboriginal perspective and Aboriginal difference in seeing traditional rights in a generous manner. Attention to the Aboriginal perspective focuses on difference as the basis to determine the content of the right. This section argues that the language of full respect is used in describing the way traditional rights are perceived. How these rights are treated once they emerge from the intersection is dealt with in the next two sections.

(a) Perceiving rights and interests with full respect

An underlying system of social meaning defines the significance of words and actions: “I promise” or “you can” have a meaning by reference to social rules (such as expectations or sanctions) not necessarily communicated by a literal translation. 24 The conceptual difficulties in comparing two dramatically different legal systems have long been acknowledged. 25 Translation of traditional rights into common law rights is not the reproduction of traditional rights, but the re- expression of those rights. Translation is therefore transformation. Native title is the translation of traditional rights extending beyond but including rights to use and control land, into common law rights to use and control land.

The proposition that pre-existing rights to land are to be perceived on the basis of full respect was set out clearly in Mabo :

the pre-existing native interests with respect to land which were assumed by the common law to be recognized and fully respected under the law of a newly annexed British territory were not confined to interests which were analogous to common law concepts of estates in land or proprietary rights. 26

Traditional rights extend beyond common law notions of property:

24 Griffiths v Northern Territory [2007] FCAFC 178 at [75]: “For strangers, such guidance and protection is essential. Its requirement means that asking permission may be irrelevant. To go somewhere unknown (that is, outside or beyond your known country) is to court disaster from the natural and spiritual world. It is not so much a question of asking permission, but of seeking guidance. Conversely, it is not a matter of trespass but of transgression, where the consequences of transgression are dire in the extreme.” 25 Amodu Tijani at 403; similarly R v Marshall; R v Bernard [2005] 2 SCR 220 [R v Marshall; R v Bernard] at [128] per Le Bel J: “It is very difficult to introduce aboriginal conceptions of property and ownership into the modern property law concepts of the civil law and common law systems, according to which land is considered to be a stock in trade of the economy.” 26 Mabo at 85 per Deane and Gaudron JJ.

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the rights and interests in relation to land which an Aboriginal community may hold under traditional law and custom are not to be understood as confined to the common lawyer's one-dimensional view of property as control over access. 27

Australian jurisprudence labels the system of traditional laws and customs a normative system:

What survived [the acquisition of sovereignty] were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system … - the body of norms or normative system that existed before sovereignty. 28

As the basis for finding rights, Australian jurisprudence attempts to perceive those social norms that can be called “rules”, which can be said to embody “norms” or a standards of behaviour. 29 Australian jurisprudence labels the system of rules a “normative system”. To describe the system giving rise to rights and interests by a term other than “legal system” is also dictated by a notion of full respect, seeing Aboriginal difference in a generous manner consistently with the approach that it is pre-existing “rights and interests” under “laws and customs” that are being fully respected as native title.

(b) Aboriginal connection to land: a complex unity

Perception of the Aboriginal connection to land involves respecting at least three types of social difference. Firstly, traditional laws and customs exist within a social context that holds the land is alive: the spirit animates the land. 30 Secondly, there is no clear separation between “law” and other social rights and obligations, or indeed between law and the shape of existence. The universe, the land, the people are the way they are because that is dictated by the force traditionally called “the Dreaming”, but more appropriately called “the Law”, as opposed to “laws” or a system of laws. 31 Thirdly, rights and obligations under

27 Ward at [95] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, similarly [578] per Kirby J; [969] per Callinan J. 28 Yorta at [36]-[37] per Gleeson CJ, Gummow and Hayne JJ 29 Yorta at [42] per Gleeson CJ, Gummow and Hayne JJ: “Nonetheless, because the subject of consideration is rights or interests, the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters”. 30 Sutton P, Kinds of Rights in Country: Recognising customary rights as Incidents of Native Title (Perth: NNTT, 2001) at 30: “The spirit of the species then animates the foetus and links the identity of the future child with the location of the special event.” Sampi [159]: “Those law grounds come from our law. They are made by law. I was told that by old people. A law ground is inamunonjin. He gave us law ground, given law to look after it. It came from him. It makes us belong to the country. In other places there is nothing in the ground.” See for example footnote 24. 31 Stanner W, “The Dreaming” [1953] in Stanner W, White Man Got No Dreaming, (Canberra: ANU Press, 1979) at 29: The Dreaming is “a kind of commentary, or statement, on what is thought to be permanent and ordained at the very basis of world and life. . . . The Dreaming determines not only

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traditional law are always inseparably linked. The combination of these three perspectives means that under traditional laws and customs, firstly, there cannot be a “right to speak for country” without a duty to care for country, this duty being enforced by both members of the community, and, through the mystical force of the Law, by the land itself, 32 and secondly, there is no clear separation between the right/duty to land and other rights/duties under the Law. As such, there is no Aboriginal conception of “title”, or proposition that communal title is the source of communal, group or individual rights and obligations with respect to land. Rights and obligations under traditional law flow from the shape of existence, not because communities, groups or individuals have “title” to land.

It is generally accepted that in non-agricultural societies, rules about connection to land evolved when there were no opportunities for surplus production, and so “these ownership systems tend to treat land less as a factor of production and more as a source of security and a centre of cultural or ideological values and obligations.” 33 The High Court approaches the traditional connection to land on the same basis:

an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land. 34

While the above generalisations are contextually valid in all societies observing traditional law in Australia, the Law in each Aboriginal community, with respect to rights and obligations connecting people to land, while sharing many common features on a regional basis, is distinct. To see traditional rights with respect to land as part of a relationship with the land, a notion of inseparable right/duty rather than a bundle of individual rights to the land, is the approach adopted in Ward ,35 and reflects full respect for the Aboriginal perspective. The general

what life is but also what it can be...... a charter of absolute validity in answer to all question of why and how. . . . of the ways in which good men should, and bad men will, act now.” 32 Sampi at [82]: “Only the Davey family was entitled to ‘break it off’. …If an outsider were to take the ochre then raya or spirit children would visit his family with sickness. They would similarly afflict the interloper.” Similarly at [249] “Laurel spoke of her mother’s (Mercia) barnman which is the umban. If someone disturbs the water hole her mother will get sick”. 33 Giovarelli R and Hanstad T, “Land Ownership”, in Prosterman R and Hanstad T (ed), Effective Rural Land Relations in ECA Countries: A Comparative Perspective (Washington DC: World Bank Group, 1998) 15 at 20. 34 Yanner v Eaton (1999) 201 CLR 351 [Yanner] at [37] and [38] per Gleeson CJ, Gaudron, Kirby and Hayne JJ, after citing the observation of Brennan J in Meneling Station that the traditional connection was “primarily a spiritual affair rather than a bundle of rights”. Ward at [14] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “As is now well recognised, the connection which Aboriginal peoples have with ‘country’ is essentially spiritual.” 35 Ward at [14] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. ..The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them.”

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principles of traditional law discussed below are those found in the Northern Territory, apart from the western desert. 36

(i) Communal and group rights and obligations

Under traditional laws and customs, primary rights/obligations with respect to land are not generally held by an undifferentiated community, but by that group of Aboriginal men and women who have acquired those rights and obligations by means of descent, connection to the land, knowledge or recruitment. 37 Native title in Australia is communal in the sense that all members of the community have obligations under traditional law, and the relevant adult members have the primary obligations. The connection to land is communal. 38

The group of people bound to the same locality hold an “estate”. 39 Beyond the estate is “the range”. An estate is generally characterised as a set of sites, conceived in terms of key sites, as opposed to a block. 40 Boundaries “are always capable of short-term and long term definition” 41 on the basis of criteria of inclusion and exclusion.

The estate was the traditionally recognized locus (“country”, “home”, “ground”, “dreaming place”) of some kind of patrilineal descent-group forming the core or nucleus of the territorial group. It seems usually to have been a more or less continuous stretch. The range was the tract or orbit over which the group, including its nucleus and adherents, ordinarily hunted and foraged to maintain life. 42

The connection between clan and estate has been explained thus:

[The clan is] a group of people bound to the same locality by ties of a more than transient kind – ties of descent and kinship, as well as of religion. In other words, its members …share a given site or constellation of sites, sacred or otherwise… Its territory is defined not so much by boundaries

36 Berndt R, “The Concept of 'the Tribe' in the Western Desert” (1959) 30 Oceania 82; Jango v Northern Territory [2007] FCAFC 101; De Rose v South Australia [2002] FCA 1342. 37 Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [117]: “However, where as in this case the rights and interests are held communally the relevant connection is that between the community as a whole and the land and waters the subject of the claim.” 38 Stanner W, “Aboriginal Territorial Organization: Estate, Range, Domain and Regime” (1965) 36 Oceania 1 at 2. 39 Stanner Aboriginal Territorial Organization op cit at 2; Maddock K, The Australian Aborigines: a portrait of their society (2ed, Ringwood, Vic: Penguin, 1982) 42. Estate groups were recognized in Yarmirr; Wandarang, Alawa, Marra & Ngalakan Peoples v Northern Territory [2000] FCA 923; Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; Gumana v Northern Territory [2005] FCA 50; Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; Griffiths v Northern Territory [2007] FCAFC 178. 40 Sutton op cit at 20-21. 41 Williams N, Two laws: Managing Disputes in a Contemporary Aboriginal Community (Canberra: AIAS, 1987) at 224. 42 Stanner, Aboriginal Territorial Organization, op cit at 2.

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marking it off from similar units, but by the actual sites which it claims. … This is the land-holding group linked by special spiritual and ritual ties. 43

The estate is the area over which the landholding group, as a group, assert primary spiritual responsibility. The Aboriginal Land Rights (Northern Territory) Act 1976 (Cwth) was drafted on the basis that it reflected the best anthropological opinion then available, and defined Aboriginal ownership of land not in terms of the possession of rights but the possession of duties. 44 A common phrase put to Aboriginal Land Commissioners since the 1970s, 45 and now endorsed by the High Court as a description of the primary Aboriginal connection to land, is the right “to speak for country”, 46 flowing from the obligation to “care for country”.47 From this primary duty/right flows necessary consequential rights to look after country.

The right to speak for country is held at a communal level in three ways: it is held by that group of men and women of the community who have acquired the right under traditional laws and customs, it is exercised on behalf of the community, not simply the right holders, and it is exercised in accordance with communal protocols. 48 A site within the estate is an area over which communal, group and individual rights and interests may exist. An individual does not possess an estate, but may possess rights and obligations under traditional law over a site in the estate area. Over the range, rights or privileges of land use, but not rights of

43 Berndt R and Berndt C, World of First Australians (Sydney: Angus and Robertson, 1977) 40. 44 Woodward AE, Aboriginal Land Rights Commission, First Report (Canberra: AGPS 1973), Second Report (Canberra: AGPS 1974) examined the traditional relationships between Aboriginal people in the Northern Territory and their land and his description of the relationship was accepted by both Aborigines and others Second Report [15]. He drew on relevant anthropological literature in developing the concepts of “local descent group ” and “primary spiritual responsibility” which underpin the Act. Under the Act, “traditional Aboriginal owners means “a local descent group of Aboriginals who …have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land”. 45 Aboriginal Land Commissioner (Toohey J), Alligator Rivers Stage II Land Claim, (Canberra: AGPS, 1981) [58]; Aboriginal Land Commissioner (Maurice J), Ti-Tree Station Land Claim (Canberra: AGPS, 1987) [156]; Aboriginal Land Commissioner (Olney J), Kidman Springs/Jasper Gorge Land Claim (Canberra: AGPS,1990): 10.2.5 “There is a strong consensus of evidence that Big Mick, … are the senior men for the Kuwang group. They were consistently identified with Kuwang country, and as the persons who could speak for it.” Similarly 10.2.7 “The strength of the traditional attachment of those found to be traditional owners …is beyond question. This is evidenced by the following facts …(a) They have an extensive knowledge of the country. (b) They exercise the prerogative to speak for the country. (c) They take responsibility for the sites and the country. (d) They possess extensive knowledge of the mythology and ritual associated with the country.” 46 Ward at [93] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; De Rose v South Australia [2002] FCA 1342 at [532]. 47 Ward at [87] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Neowarra v Western Australia [2003] FCA 1402 at [156], [300]; De Rose v South Australia [2002] FCA 1342 at [491]. 48 Sutton op cit at 26-29. In Yanner at [74] per Gummow J: “The exercise of rights, or incidents, of an indigenous community's native title, by sub-groups and individuals within that community, is best described as the exercise of privileges of native title. … The nature and scope of the privileges in question will vary with the traditional laws and customs of the particular community."

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primary responsibility or exclusive possession, are asserted at the communal level.

(ii) The centrality of the community: the locus of exclusive possession

The centrality of the community in the recognition of native title has been emphasised in comparative jurisprudence. 49 The recognition of pre-existing Aboriginal sovereignty in New Zealand and the USA, and the negotiation of treaties in Canada, New Zealand and the USA, resulted in the recognition of the communal unit as the level of interaction with the Crown, and therefore, as a matter of practicality, the locus of rights to land. It was the communal unit that asserted rights against other Aboriginal communities and European settlers. It is also possible to argue that the perception of traditional rights to land as inherently communal, a theory which “pervades all colonial jurisprudence”, flows from the perception of Aboriginal communities, and therefore communal title as “primitive”. 50 However, the recognition of communal title rests on a firmer basis than these bases of pragmatism and racism.

The right of exclusive possession rests at the communal level. It is not an individual right. The idea of exclusive possession begins with the estate. The estate is the recognized locus of ties of descent, kinship and religion, of the complex unity that is the Aboriginal connection to land. From the holding of primary spiritual responsibility for the land flows the duty to care for country and the right to speak the country. The right to speak for country is an assertion of the exclusive right to control access to country:

It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for”, country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources. 51

The co-existence of a communal assertion of exclusive possession and, within that communal assertion, an individual assertion of primacy in the hierarchy of rights (not being an assertion of rights of exclusive control), is consistent with treating the community as “owner”. In traditional societies, the ability to exclude as a matter of right is not generally possessed at the individual level, it is shared by a group. 52 In Pacific Canada, land ownership under traditional law is treated

49 §2.2 Native title as property. 50 Brown K, “The language of land: look before you leap” (2000) 4 J South Pacific Law . 51 Ward at [14] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 52 Delgamuukw at [155]: “Exclusivity, as an aspect of aboriginal title, vests in the aboriginal community which holds the ability to exclude others from the lands held pursuant to that title.” R v Sundown [1999] 1 SCR 393 at [36] per Lamer CJ and L’Heureux-Dubé, Cory, McLachlin, Iacobucci, Bastarache and Binnie JJ: “Any interest in the hunting cabin is a collective right that is derived from the treaty and the traditional expeditionary method of hunting. It belongs to the Band as a whole and not to Mr. Sundown or any individual member .. It would not be possible, for example, for Mr. Sundown to exclude other members of this First Nation who have the same treaty right to hunt”.

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as communal by reference to where the right to exclude lies or how it may be conferred. 53 Mäori customary tenure is collective: “No individual interests in the land were discernible”. 54 In Mabo , Brennan J distinguished between a proprietary communal title and usufructuary rights of use in individuals. 55

The centrality of a communal entitlement to land accordingly rests neither on a denial of rights under traditional law being held at an individual level, nor on a denial that individual rights are common law rights under the continuity doctrine. The centrality of the communal entitlement rests on the notion that native “title” dictates the assertion of a claim with a level of proprietary intent in which a general right to control access to country is manifested, of which the right to exclude is the paradigm, and that this type of claim is made only at the communal level. The search is not for a “communal title” under traditional law, but for traditional rights and obligations which can be recognized by the common law as native title. The principle of full respect for pre-existing communal, group and individual rights dictates that common law recognition will include not only those communal rights that involve a proprietary intent to control but the kinds of land-use rights recognized in the comparative jurisprudence as Aboriginal rights , rather than Aboriginal title.

(iii) The right to speak for country as control over access

The appropriate translation of the communal right to speak for country is a right of exclusive possession:

It may be accepted that ... ‘a core concept of traditional law and custom [is] the right to be asked permission and to speak for country’. It is the rights under traditional law and custom to be asked permission and to ‘speak for country’ that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others. The expression of these rights and interests in these terms reflects not only the content of a

53 The exchange in Calder between the trial judge and anthropologist Duff, reported at 372-374, highlights this: “A: The owners in this sense had certain rights of alienation. They could give up the tract of land, lose it in warfare, but in practice it would not go to anybody outside of the tribe, that is, a tract of Nishga land might change hands but it wouldn't go to other than a Nishga family. …Exclusive ownership resting not in an individual. Q: Possession or occupancy, not ownership? A Oh, I see. Possession or occupancy resting in a specific group rather than an individual. Q: Could the group having exclusive occupancy select within the tribe, if they close, another group to whom they wanted to either, to use the modern word, convey it, or would that go by general communal habit, custom or even law? A: The group could do the thing you suggest. For example, in some cases the chief of a group might convey a property to his son, which would not be the normal way; it would be to his nephew in the normal way. Q: Yes. A: And that would, on rare occasions, be accepted. Q: Always subject to the acceptance of what, the tribe? A: The tribe, yes.” 54 Law Commission, Mäori Custom and Values op cit in Chapter 2 footnote 22. 55 Mabo at 51 per Brennan J: “The fact that individual members of the community…enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title.” See §4.1(a) The initial translation: native title as communal ownership.

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right to be asked permission about how and by whom country may be used, but also the common law's concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing. 56

A right to speak for country is a right to control access to that country. 57

A generally noted feature of traditional law with respect to the duty to care for country is the “rite of induction” by which strangers must be introduced to country by the holders of relevant rights. 58 This obligation is described in the following terms:

The Rainbow Serpent myth is about land rights, incorporation, and the confrontation between insiders and outsiders…As I have shown, people enjoy a kind of symbolic mystical safety within their own Country, but they are in mortal danger unless they are vouched for - that is, temporarily incorporated by insiders - when they visit other Countries. 59

The right to control access is not an independent right under traditional law. From the duty to protect country flows the right to speak for country and the duty/right to control access for the purpose of protecting country. As strangers may go to places that damage country, and therefore damage those who have a duty to care for country, their presence must be controlled. As Woodward noted: “One of the most important proofs of genuine Aboriginal ownership of land will be the right to exclude from it those who are not welcome”. 60

(iv) Traditional use- rights

Traditional rights to hunt and fish are valuable to members of Aboriginal communities. Rights to hunt within the estate are part of the larger estate connection to land. The ability to hunt in lands outside the estate may exist as a

56 Ward at [88] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 57 Neowarra v Western Australia [2003] FCA 1402 at [275]: “A right to speak for, speak about, talk for or talk about country was often used by witnesses …Thus Nugget Tataya understood “speaking for” country as including the right to permit a mining or tourist company to use the land. …On the reading of the whole of her evidence it is clear that “speaking for” country means ownership of it. Thus it is “our own private place” onto which tourist operators should not go without permission. It involves “making decisions” about the country. …Jimmy Maline …he used “coming from”, “speaking for”, “belonging to” and “making decision about” country interchangeably. Some witnesses spoke of a family “owning” country, “looking after” it and “belonging to” it. 58 Sutton, op cit at 26-29; Griffiths v Northern Territory [2007] FCAFC 178 at [77]: “A land owner has a duty to ensure the safety of all those who visit his or her country. This means that strangers (mayikari) must be inducted into the country, so that the spirituality of the country will do them no harm. The strangers also have a duty to pay proper attention to the yakpalimululu and follow his or her directions, so as to avoid the potent spiritual danger of the country, which must be learned about and properly understood. Strangers are inducted into country by a senior country owner by means of a short ritual that involves wetting the head of the stranger with water from a creek or pool in the country. This ritual is called mulyarp.”. 59 Lardil Peoples v Queensland [2004] FCA 298 at [65]. 60 Woodward op cit at [109].

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privilege or as of right, but in both cases it is a connection to land recognized as “native title”. Use rights, and especially those with respect to hunting, are subject to reciprocal duties. 61 But such rights, per se , are not rights to exclusive possession of land or the right to control the uses to which land is put.

(v) Individual rights and obligations

The ultimate connection to land that an individual can have “in central Australia … and probably in most other parts of the continent” is with that person’s “conception site”. 62 Strehlow, speaking of the Arrernte, described the connection to conception site as “an inalienable right of personal land ownership”. 63 The conception site is fundamental because this is where the spirit of the land entered the person and made the person human, 64 and “the totemic ancestors …watch over all property rights, both for themselves and for their reincarnations”. 65 A conception site gives rise to both a direct individual connection to land, and the individual’s obligations (and therefore rights) under traditional law with respect to that site. It is common for people conceived/born in the vicinity of a significant site to associate their birth/conception with that site, so that there will be a small group who, as individuals, have primary spiritual responsibly for that site. 66 The connection to land of these individuals is collective in the sense that there is a group of individuals share the same rights. 67 Under traditional laws and customs, damage to a conception site would lead to sanctions against the collective of individuals who failed to protect the site. But other members of the community may not have these rights. It is not correct to say that all traditional rights are communal. Because of the existence of individual rights and obligations under traditional law, no two persons are likely to have an identical set of rights, though they will share many rights/obligations in common. 68

61 Peterson N, “Demand-sharing: Reciprocity and the Pressure for Generosity among Foragers” (1993) 95 American Anthropologist 860 discusses the topic primarily by reference to the Northern Territory. 62 Strehlow T, Central Australian Religion: Personal Monototemism in a Polytotemic Community, [1964] (Bedford Park, SA: AASR, 1978) at 44. Conception sites as a basis for rights in country were recognized in Hayes v Northern Territory [1999] FCA 1248 at [21] (Arrernte native title claimants); Wandarang, Alawa, Marra & Ngalakan Peoples v Northern Territory [2000] FCA 923 at [48]-[51]; Gumana v Northern Territory [2005] FCA 50 at [133]. 63 Strehlow ibid. 64 Bird R, Dingo Makes Us Human: Life and land in an Aboriginal Australian culture (Melbourne: Cambridge UP, 1992) discussing the Yarralin people of the Northern Territory. 65 Strehlow ibid. 66 Strehlow ibid. 67 Sutton op cit at 12. 68 Sutton ibid. Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [98]: “The fact that customary interests and entitlements are held communally by each landholding group does not mean every individual member of the landholding group will possess and exercise exactly the same bundle of customary rights and entitlements”.

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(vi) Co-existence of communal and individual rights and obligations

Communal rights are not derivative. But it does not follow that sub-communal rights must be derived from a communal right to land. The High Court in Mabo and Wik adopted the Amodu Tijani chieftainship model of communal title where there is a communal title, over which the Chief has personal (but not arbitrary) powers of right allocation to families. 69 This model naturally envisages a communal title over which families or individuals assert usufructuary rights. This form of communal title is unknown in the Northern Territory. 70 In Wik , Gummow J noted that Australian law could accommodate notions “of communal title which confer usufructuary rights” 71 (emphasis added) on individuals, a model which assumes sub-communal rights are “dependent” on or “carved out” 72 from communal title. But an individual’s rights and obligations with respect to the land do not involve the process of carving a lesser right out of a greater communal right. Rights are placed in the land directly by “the Law”, and are not explained by analogy to common law estates.

Members of the native title community exercising rights in common may be part of a group exercising a group right, or they may be, collectively, merely exercising individual or sub-group rights in common. 73 Communal, group and individual rights and interests co-exist over the same land. Each right is directly sourced in the obligations of the Law.

69 Sunmonu v Disu Raphael [1927] AC 881 at 887: “The matter is very well stated in the report made by Rayner CJ on Land Tenure in West Africa.. adopted by the Privy Council in the case of Amodu Tijani: “The … notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual. .. but in every case the chief or headman … has charge of the land, and in loose mode of speech is sometimes called the owner. He is to some extent in the position of a trustee, and as such holds the land for the use of the community or family. He has control of it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it. But the land so given still remains the property of the community or family.” 70 This type of tenure has not been found to exist by the Federal Court in any native title matter, or by any Aboriginal Land Commissioner in a report under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwth) . 71 Wik at 177: ““there is no particular reason to be drawn from English land law which renders it anomalous to accommodate in Australian land law notions of communal title which confer usufructuary rights. There are recognised in England rights of common which depend for their establishment upon prescription and custom.”. 72 Mabo at 62 per Brennan J: “a sub-group or individual who sues to protect or enforce rights or interests which are dependent on the communal native title. Those rights and interests are, so to speak, carved out of the communal native title”. Similarly at 51 set out in footnote 16. 73 Sutton op cit at 39: “There is no way one can make a list of all people with the right to hunt, fish, gather and sing on a certain piece of land and thus arrive at the definition of ‘the group’ that is the beneficial holder of” native title.

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(c) Conclusion: the Aboriginal connection to land and the language of full respect

In Australian jurisprudence, the language of full respect is evident in the perception of traditional rights, thus giving weight to the Aboriginal perspective: we look to rights and interests under a normative system (of traditional laws and customs ), though such rights are not necessarily known to the common law, or consistent with the common law. There is a complexity of traditional rights. 74 Accordingly, Australian law recognizes as native title, communal, group and individual rights and interests.

The right to speak for country is the primary traditional communal right to land, and as a right that includes control of access, has been translated into a common law right of exclusive possession. Fundamental to the Aboriginal perspective is the need to control access to land because of the obligations placed on right holders to care for country by "the Law". Comparative and Australian jurisprudence also recognize communal use-rights short of exclusive possession.

However, Australian jurisprudence recognizes that individuals may possess native title rights, affirming full respect for the complexity of Aboriginal perspective concerning rights and obligations with respect to country. To the extent that individual rights involve the recognition of a common law property right, they are protected as such. The reconciliation of individual property rights and communal property rights, as common law rights, takes place in the common law's ability to separately enforce such rights. The existence of individual rights to land, therefore, does not detract from the communal right to land, as a right of exclusionary control under traditional law.

74 Sutton op cit at 4 refers to: “local individual or family rights versus tribal over-rights and rights granted through intertribal territorial comity; rights versus privileges; primary versus secondary rights; unmediated versus mediated rights; presumptive versus subsidiary rights; actual versus inchoate versus potential rights; generic versus specific rights; and, more recently, core versus contingent rights.” At 22: “There is no universal formula for setting out native title rights – they have to be analysed and presented separately in each case.”

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§4.3 The intersection between normative systems: the denial of full respect for native title as a common law right

While the language of full respect is adopted in the perception of traditional rights and interests, the process of translating traditional rights into common law rights has adopted a jurisprudence where Aboriginal difference is used as a basis to qualify the notions of full respect and faithful translation into common law rights.

(a) The intersection between two normative systems exists to enable a right to be expressed in terms that are meaningful to the common law

The idea of an intersection between systems was first set out by the High Court in Fejo . In Fejo the court quoted prior statements that native title was extinguished by the grant of an estate in fee simple, 75 and then said:

Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law. 76

The court then held that native title had been extinguished, explaining further the notion of intersection. In Fejo the idea of intersection was a metaphor: if native title has been already extinguished, there can be no intersection between “systems”. But Yorta explained the notion of intersection differently: native title is “an intersection of two sets of norms, or of two normative systems”. 77 There are two normative systems, but only one is a legal system. Yorta espouses a conception of two living systems overlapping. The approach to the intersection in Yorta is to be distinguished from rules of private international law where the whole purpose of that category of law is to resolve conflicts between “two competing systems of law”, 78 an all or nothing rule.

Ward explained the intersection thus:

75 Fejo at [42]-[45] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 76 Fejo at [46] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. The passage continues: “The underlying existence of the traditional laws and customs is a necessary pre- requisite for native title but their existence is not a sufficient basis for recognising native title. And yet the argument that a grant in fee simple does not extinguish, but merely suspends, native title is an argument that seeks to convert the fact of continued connection with the land into a right to maintain that connection.” (emphasis in original) 77 Yorta at [38]-[39] per Gleeson CJ, Gummow and Hayne JJ: “Thus, to continue the metaphor of intersection, the relevant intersection, concerning as it does rights and interests in land, is an intersection of two sets of norms…. or of two normative systems. …That intersection is sometimes expressed by saying that the radical title of the Crown was ‘burdened’ by native title rights”. Similarly Yarmirr at [244] and [298] per Kirby J. 78 Yarmirr at [33] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “It is a principle which, whatever its merits may be, represents a resolution of the problems thought to result from the intersection between what can be seen as two competing systems of law — the law of the place in which the land is situated and the law of the forum.”

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Identifying the nature and location of that intersection requires careful attention to the content of traditional law and custom and to the way in which rights and interests existing under that regime find reflection in the statutory and common law. 79

The idea of an “intersection” is therefore to create a common recognition space by which only rights and interests that can be meaningfully reflected by Australian law are translated into rights. As explained in Ward , “the relevant task …is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms”. 80 The same point is also expressed in Canadian jurisprudence: the recognition of Aboriginal rights “must be framed in terms cognizable to the Canadian legal and constitutional structure”. 81 Within a jural conception of right, it follows from Aboriginal difference that there will be an untranslatable residue of traditional rights, ignored by the common law, either because these rights cannot be perceived to exist, or, while perceived to exist, cannot be translated into meaningful common law rights. 82

(b) The fragmentation of the Aboriginal connection to land: the common law as a jurisprudence of rights

The Australian legal system is a jurisprudence of “rights”. To “recognise” something as a right is to make it “enforceable”. 83 To recognise native title is to give “rights and remedies” to those who hold native title. 84 The recognition of rights dictates the recognition of correlative duties to respect the right. Enforceability is essential to the existence of a right under Australian law, 85 and the maxim ubi jus, ubi remedium – “where there is a right there is a remedy” 86

79 Ward at [85] per Gleeson CJ, Gaudron Gummow and Hayne JJ 80 Ward at [89] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 81 Van der Peet at [49] per Lamer CJ. 82 An example of the untranslatable is contained in the notion of “value”, because this is a culture specific notion. If the common law classes a claim as without value, no remedy for interference with the right claimed is granted, and the existence of a right is therefore denied. But what is valuable in one culture may not be valuable in another, and value does not necessarily translate across distinct legal systems. 83 Yarmirr at [343] per Callinan J (diss): “The particular rights and interests must be such that the common law, however flexible it, and its application may be, is capable of recognising and enforcing them.” 84 Yarmirr at [42] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “..the common law will “recognise” those rights. That is, it will, by the ordinary processes of law and equity, give remedies in support of the relevant rights and interests to those who hold them.” Similarly at [76]: “the common law will recognise rights and .. it will do so by affording remedies for their enforcement and protection.” 85 Ashby v White (1703) 2 Ld Raym 938 at 952, per Holt CJ: “Indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal’…If the plaintiff has a right, he must of necessity have the means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it.” 86 3 Blackstone Commentaries 24. United States v Loughrey 172 US 206 (1898): “The maxim ‘ubi jus, ibi remedium,’ lies at the very foundation of all systems of law.”

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embodies this principle. In Mabo the Court saw native title as a true right protected by such legal or equitable remedies as were appropriate.87 Thus the traditional right to speak for country is manifested as the common law right of exclusive possession, protected by remedies such as ejectment. 88

It also follows from Aboriginal difference that there will be traditional duties, attached to traditional rights, which cannot be manifested by an appropriate common law jural conception. The duty to care for country does not confer an enforceable right on the whole world. Under traditional law the duty does confer rights only on those who have other rights/duties over the same country. These duties remain part of the normative system binding native title holders. These duties do not receive common law expression because native title is not the recognition of a system of traditional laws and customs, but the recognition of property rights.

(c) The rhetoric of difference and new rules of right-recognition

The intersection is the recognition space between two living systems where common law rules of right-recognition determine what rights receive expression as common law rights: a process that emphasises both Aboriginal difference and the primacy of the common law. However, even if traditional rights are capable of common law expression, there is another aspect to the intersection: traditional rights cannot be translated into common law rights if to do so would fracture a “skeletal principle” of the common law, or if the right would be repugnant to “natural justice, equity and good conscience” (the doctrine of acceptable custom) or “antithetical” to the common law. These newly created exclusionary rules of right-recognition have been incorporated into Australian jurisprudence because, it will be argued below, the paradox of native title as the recognition of property, and native title as the recognition of Aboriginal law, has not been resolved. However, these rules, which do not exist in the comparative jurisprudence, as they are not rules with respect to "property", serve to contextualise rights shaped by Aboriginal difference as lesser.

(i) The intersection is applied to assert the primacy of the common law perspective

Once a common law right is recognized, common law principles, and common law and statutory remedies, apply to protect that right, and to shape the common law expression of the right.

The difference between the traditional and common law perspectives can be illustrated by attitudes to property in off-shore waters. For at least some Aboriginal and Torres Strait Islander communities, the sea may be a “country” where defined rights of use and exclusion exist under traditional law, rights identical to the rights the communities enjoy with respect to lands and rivers. The

87 Mabo at 61 per Brennan J; Mabo at 100, and at 112 per Deane and Gaudron JJ 88 Radaich v Smith (1959) 101 CLR 209 at 227 per Windeyer J: “A right of exclusive possession is secured by the right of a lessee to maintain ejectment and, after his entry, trespass.”

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recognition of “control” over the sea, in the form of exclusive Aboriginal fishing rights, has been recognized in the comparative jurisprudence. 89 While traditional rights of exclusive possession over the sea were not found to exist by the trial judge in Yarmirr FC , 90 the reason exclusive native title rights over the sea could not be recognized was said to lie in two factors outside the notion of the intersection. Firstly, the nature of the sovereign claim to off-shore waters in Australian law, in that no common law rights of exclusive possession are any longer asserted, did not permit the recognition of rights of exclusive possession. Secondly, although the common law once acknowledged an exclusive fishing right in such waters, in Yarmirr 91 the High Court majority adopted a version of the inconsistency of rights test to hold that a right of exclusive possession or exclusive fishing was “inconsistent” with common law “principles”. 92 This approach does not engage the issue of whether, as Australian law, the common law was necessarily modified to the extent necessary to recognize a native title right of exclusive fishery. 93

The common law recognises rights of exclusive possession, and such rights are capable of applying, by way of analogy, to things that the common law does not apply them to: things such as wild animals or off-shore waters. So applied, native title rights would have meaning and coherence because the common law expression of the right (exclusive possession) has meaning. Because the common law no longer recognizes rights of exclusive possession in the sea, 94 it could be

89 New Zealand: The Maori Land Court, Re Ninety Mile Beach, (1957) 85 Northern MB 126 at 126-27 recognized exclusivity under Maori law: “These two tribes respectively had complete dominion over the dry land within their territories, over this foreshore, and over such part of the sea as they could effectively control. It is well known that the Maoris had their fishing grounds at sea and that these were jealously guarded against intrusion by outsiders.” Canadian jurisprudence has developed a conception of priority common law rights rather than exclusive rights, though in effect, after taking into considerations of conservation, priority may effectively amount to exclusivity, Sparrow at 1116: “any allocation of priorities after valid conservation measures have been implemented must give top priority to Indian food fishing.” Similarly Washington v Fishing Vessel Assn 443 US 658, at 678-9 (1979). 90 Yarmirr v Northern Territory (1998) 82 FCR 533 [Yarmirr (FC)] at [5]. 91 Commonwealth v Yarmirr (2001) 208 CLR 1 [Yarmirr]. 92 Yarmirr at [96]-[97] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “the tension between, on the one hand, the rights to “occupy, use and enjoy the waters of the determination area to the exclusion of all others” and “to possess” those waters to the exclusion of all others … and, on the other, the rights of fishing, navigation and free passage is self-evident. …Rather, attention must be directed to the nature and extent of the inconsistency between the asserted native title rights and interests and the relevant common law principles.” At [40] the majority went further: “The requirement in s 223(1)(c), that the native title rights and interests which are claimed are ‘‘recognised by the common law of Australia’’…At the risk of some over-simplification, the fundamental question … is a question about inconsistency between the asserted rights and the common law”. 93 Hanasiki v OJ Symes (Unreported, High Court of the Solomon Islands, Charles J 17 August 1951), discussed at length in Solomon Islands Law Reform Commission Report No. 1, “Land below high water mark and low water mark” (Honiara: SILRC, 1997) holding that the common law of the Solomon Islands recognized an exclusive aboriginal right to fish when the right was established under indigenous custom pre-existing the introduction of the common law. 94 Before the Magna Carta, the Crown could exclude the right of the public to fish by granting a several fishery to a subject. “It is accepted law that since the Magna Carta in 1215 the Crown cannot

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argued that there is no intersection between systems, because a common law conception of exclusive rights does not exist in the recognition space designated “property rights in off-shore waters”. But the intersection is not an intersection between rights. The intersection is between two systems. The common law recognizes a limited class of rights in off-shore waters. The conception of a systemic intersection is present and accepted in Yarmirr . There was no statement in Yarmirr that exclusive rights in off-shore waters could not be recognized because there was no intersection between normative systems; nor was the non- recognition of such rights expressed in terms that the public rights of fishing and navigation had removed a traditional right from the intersection space. Recognition of a native title right of exclusive fishing was denied because such a native title right would be “inconsistent” with common law “principles”. Superior common law “principles” prevailed over lesser native title rights.

(ii) The doctrine of acceptable custom: traditional law as a source of law that is subordinate to the common law

The common law of custom does not recognise a title to land “by custom”, it only recognizes customary rights to use land. 95 The recognition of customary rights focuses attention on the enjoyment of rights over land not owned by a holder of the customary right, rather than the concept of title. 96 In Mabo Brennan J argued, by reference to customs concerning inheritance under traditional law, firstly, that such transmission rights were “incidents” of native title, and secondly, that in Australian law there was a doctrine of acceptable custom which limited the recognition of these “incidents”. Despite a general rejection of principles of customary land-use rights as relevant to native title, 97 the doctrine of acceptable custom remains.

The common law recognizes certain “customs” as “local common law”, even if inconsistent with the general common law. The origin of customary rights is immemorial usage, 98 not presumed Crown grant. The common law recognises a custom if it is:

by executive act grant an exclusive fishery in tidal waters”: Commonwealth v Yarmirr (1999) 101 FCR 171 [Yarmirr (FFC)] at [541] per Merkel J. 95 In Mabo both Brennan J and Toohey J doubted a conception of customary title (ie title by common law custom) existed. Brennan J at 57: “One argument … was the existence of a title arising after annexation in accordance with a supposed local legal custom under the common law …There are substantial difficulties in the way of accepting either of these arguments, but it is unnecessary to pursue them.” Toohey J at 177: “This third basis of claim raises difficult questions with respect to the interruption of these rights since such a “title” rests, not on factual occupation or possession, but on the exercise of particular customs.” 2 Blackstone Commentaries 422-429 recognized only customary title to chattels. 96 Hull v Nottinghan (1876) 33 LTR 697 (customary right to dance on another's land); Mounsey v Ismay (1863) 1 Hurl & Colt 729 (customary right to hold annual horserace on another's land). 97 Fejo at [53] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ: “Next, it was sought to draw some analogy with rights recognised in English land law like rights of common or customary rights. But reference to those rights in the present context is misplaced. They are creatures of the common law finding their origins in grant or presumed grant.” (footnotes omitted) 98 12(1) Halsbury’s Laws of England (4 th reissue) (London, Butterworths, 1997) “Customs and Usage” esp [601]: custom is “a particular rule which has existed either actually or presumptively

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• certain; • exercised since time immemorial; • observed as of right; • not inconsistent with statutory law; • reasonable. 99

A custom derives its validity from being “reasonable” at its inception and remaining reasonable under present conditions. 100 The Case of Tanistry 101 denied the recognition of a Brehon law of inheritance (succession devolved through the most “worthy” male member of the extended kin group), on the basis that it was unreasonable. 102 In Mabo Brennan J discussed the Case of Tanistry under the heading “The nature and incidents of native title” 103 and stated:

The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants, provided those laws and customs are not so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld [footnote: Idewu Inasa 104 ]. 105

Repugnancy to natural justice, equity and good conscience is directed specifically to the traditional “laws and customs” which regulate “incidents” of native title, as the incidents themselves, such as “inheritance”, as opposed to a rule of inheritance, could hardly be seen as offensive.

Idewu Inasa , the only case cited in support of the repugnancy proposition, was not a case about a common law principle. In that case the non-recognition of a custom contrary to natural justice, equity and good conscience was required by a statutory provision with respect to the recognition of indigenous law as a direct

from time immemorial and obtained the force of law in a particular locality although contrary to, or not consistent with, the general common law of the realm.”. 99 12(1) Halsbury’s Laws op cit at [606]. 100 12(1) Halsbury’s Laws op cit [609]-[610]; New Windsor Corporation v Mellor [1975] Ch 380 at 386; Tyson v Smith (1838) 9 Ad and E 406 at 421. Hale M, The History of the Common Law of England [1713] ((New York, NY: Legal Classics Library 1987) at 18: “First, The Common Law does determine what of those customs are good and reasonable, and what are unreasonable and void. Secondly, The Common Law gives to those Customs, that it adjudges reasonable, the Force and Efficacy of their Obligation.” 101 Case of Tanistry (1608) 80 ER 516. 102 (1608) 80 ER 536: “Therefore this custom which lets the inheritance and the freehold also be in abeyance, after the death of every tenant, is unreasonable…This custom is also unreasonable ...[as it] appears plainly to have commencement by the usurpation and tyranny of those who were most potent amongst them …[Also] this custom was void for uncertainty.” 103 Mabo at 58. 104 Idewu Inasa v Oshodi [1934] AC 99. 105 Mabo at 61.

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source of law. Idewu Inasa involved the application of the phrase “natural justice, equity and good conscience” occurring in s.20 of the Supreme Court Ordinance 1923 (Nigeria).106 Under that Ordinance, after a rule of customary law was proven to exist, the court had to then consider whether it was repugnant to “natural justice, equity and good conscience”. Similar phrases occur in other colonial legislation. 107

In US, Canadian and New Zealand jurisprudence, there is no suggestion that the recognition of native title may involve the recognition of rights contrary to natural justice, equity and good conscience. Brennan J’s creation of the doctrine of acceptable custom is an attempt to limit, not the enforcement of native title against the world, but the enforcement of specific traditional laws and customs giving rise to “incidents” governing the way communal rights are acquired, allocated or enforced against other members of the community, by the common law . Brennan J’s dicta enters direct recognition, and therefore direct enforcement of traditional law, and creates a confusion between the recognition of traditional law as a direct source of law, and the recognition of property rights, a confusion manifested in Ward in the reasoning of Callinan J:

In Mabo at 42 per Brennan J, it was stated that a change in the law was necessary to make the common law non-discriminatory. But this Court and other legal bodies are founded on a post-dream time legal order. Although some may contend that we should, we do not in fact recognise Aboriginal criminal law, tort law or any aspects of indigenous laws, nor do we pretend to. The question then is why the common law of property, which had been regarded as settled for more than a century, should have been changed to recognise sui generis interests in land that had no counterpart in our legal system. 108

A different proposition, repugnancy to “natural justice, equity and good conscience” as a basis to limit the content of the right of native title, was invoked by the High Court in Yarmirr 109 and Yorta :

106 Idewu Inasa v Oshodi [1934] AC 99 at 105. The Privy Council held a custom, which rendered an offending occupier and all the occupier's relatives liable to be evicted, as one so repugnant to natural justice, equity and good conscience that recognition must be withheld. However, as the custom in question had been modified under traditional laws and customs, and was limited to eviction of the offending occupier and those of his relatives who had supported him, the Privy Council held that the custom was not so repugnant and, therefore, was entitled to be enforced. 107 This is the general composite phrase employed in west African legislation: Ekow WC, “The interaction of English Law with customary law in West Africa” (1964) 18 ICLQ 547. Nwabueze RN, The Dynamics and Genius of Nigeria's Indigenous Legal Order (2003) 1 Indigenous LJ 1. Similarly, Section 20 of the East Africa Native Courts (Amendment) Ordinance 1902, applying to Kenya, Tanganyika and Uganda: “In all cases civil and criminal to which natives are parties, every Court (a) shall be guided by native law so far as it is applicable and is not repugnant to justice and morality …”. Section 71 of the New Zealand Constitution Act 1852 (UK) allowed the creation of districts where only Maori “laws, customs, and usages” applied “so far as they are not repugnant to the general principles of humanity”. 108 In Ward at footnote 1103. 109 Yarmirr at [258] per Kirby J; similarly [177] per McHugh J (diss); [343] per Callinan J (diss).

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The requirement in s.223(1)(c) of the Act is that the rights and interests claimed as native title be “recognised by the common law of Australia”. … [C]ommon law … recognition and protection depends on native title not having been extinguished and its not having incidents that are repugnant to the common law. 110

This passage fails to distinguish between “incidents” of a property right, and the law regulating such incidents. The rule in Mabo was not a rule about the content (“incidents”) of native title. Brennan J held that it was claims to incidents, based on a traditional law determined to be repugnant, that were denied common law recognition, not the incidents of the title. Brennan J was articulating the denial of traditional law as a direct source of law by reference to a test akin to reasonableness. A doctrine of acceptable custom is sourced in doctrines relevant to the recognition of traditional law as a direct source of law, but native title is a property right or “title” to land, it is not the recognition of traditional laws and customs as a legal system.

The common law of custom dictates that a barbarous customary law be denied recognition in toto , not that it be transformed into a different law shorn of its offending aspects. If native title were the direct recognition of traditional law, then native title and principles governing the transmission of native title rights are matters for indigenous law, or common law custom. The proper resolution of the tension between native title as the recognition of indigenous law, and native title as a property right, is the approach taken in Federal Court jurisprudence, the laws regulating the transmission of native title are part of the native title property right: hence the determination of the “criterion of group acceptance … is not to erect or recognise a right to enforce traditional law and custom”. 111 Australian law has consistently declared that traditional law cannot be enforced under the Australian legal system. 112 It follows that all incidents of native title are part of the property right of native title, and therefore the determination of these incidents is the determination of common law rights. Accordingly, the assertion of these common law rights against other persons, including those also asserting native title rights, is a matter for Australian law.

110 Yorta at [110] per Deane and Kirby JJ. 111 Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [114] per Wilcox, French and Weinberg JJ: “The membership of any indigenous society can be defined by rules associated with particular rights and interests such as those accruing to the patrilineal descendents of estate group members. Membership rules may also apply communal recognition and qualification such as birthplace or spousal affiliation. To build in a criterion of group acceptance to the definition of membership of the relevant community is not to erect or recognise a right to enforce traditional law and custom.” 112 Gumana v Northern Territory [2005] FCA 50 at [146]: “As already remarked it is not the role of this Court under s 225 of the NTA to apply, administer or enforce traditional law…Consequently, it is not the Court’s task to adjudicate upon disputes that may arise under traditional Aboriginal law.” Yarmirr at [205] per McHugh J: “Sadly from the claimants' point of view, without the recognition and backing of the common law, rights and interests possessed under traditional laws are unenforceable in the Australian legal system.”

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(iii) The skeletal principle: native title as different to common law rights and therefore subordinate to common law doctrines/principles

In Mabo , Brennan J created a second doctrine of rights recognition, one of indeterminate reference, that the common law could not recognise native title if this recognition would fracture a skeletal principle of the common law. This doctrine has not been wholly discounted by later jurisprudence, 113 and the concerns that gave rise to it remain.

Brennan J stated that the recognition of the rights in land of indigenous inhabitants “would be precluded if the recognition were to fracture a skeletal principle of our legal system”. 114 This is not a statement of extinguishment of native title by inconsistent rights, but a denial of entry into Australian law. The doctrine of tenure was “a doctrine that could not be overturned without fracturing the skeleton which gives our land law its shape and consistency”. 115 No basis for the conception of the skeletal principle beyond bare assertion, or the existence of any other skeletal principle, was indicated by Brennan J. The principle was created to accord priority to interests in land created in accordance with the doctrine of tenure, though it was expressed as a universal principle: “It is not possible, a priori , to distinguish between cases that express a skeletal principle and those which do not”. 116 Native title was to be recognized, as Callinan J expressed it, “without unduly disturbing the law of Australian property.” 117 A doctrine of skeletal principle limited the extent to which Australian law was necessarily modified to fully respect native title.

A discussion of what principles fell within the skeletal principle occurred in the Yarmirr cases where the issue was the recognition of native title rights in offshore waters, and so the doctrine of tenure did not apply.

The Federal Court, at first instance, held that any exclusive native title right could not be recognized, as it infringed the right of innocent passage, which Australia was obliged to recognise and enforce, under international law. 118 Recognition of

113 Yarmirr at [258] per Kirby J: “The only limitations on recognition of native title rights and interests, that pass the tests of pars (a) and (b), to be read into par (c) are those stated in Mabo [No 2]: namely that native title could not be recognised when to do so would “fracture a skeletal principle of our legal system”; or where to do so would be repugnant to the rules of natural justice, equity and good conscience”; similarly at [177] per McHugh J (diss); at [343] per Callinan J (diss). 114 Mabo at 44. 115 Mabo at 45. Brennan J in Dietrich v R (1992) 177 CLR 292 at 319 views the conception of skeleton as aspect of legal consistency: “Changes in the common law are not made whenever a judge thinks a change desirable. …In ultimate courts of appeal, the chief constraints are found in the traditional methods of judicial reasoning which ensure that judicial developments remain consonant not only with contemporary values but also with what I described in Mabo as “the skeleton of principle which gives the body of our law its shape and internal consistency”. The law must be kept in logical order and form, for an aspect of justice is consistency in decisions affecting like cases and discrimination between unlike cases on bases that can be logically explained.” 116 Mabo at 30. 117 Ward at [969] per Callinan J. 118 Yarmirr (FC) at 592.

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exclusive possession was also said to be inconsistent with the public right of navigation and the public right to fish, each of which were a “skeletal principle of our legal system”. 119 The Full Federal Court agreed, 120 except that, with respect to the recognition of an exclusive right to fish, Merkel J found that the common law recognised exclusive fishing rights and considered that no skeletal principle would be fractured. 121 Thus three Federal Court judges found that the skeletal principles of the public right of navigation and the public right to fish denied the recognition of a native title right as an exclusive right.

In Yarmirr the High Court joint majority denied common law recognition of exclusive native title rights in the sea, by reason of an inconsistency between native title rights and the “common law public rights to navigate and to fish.” 122 The joint majority recast the reference to the skeleton of the common law, categorising it as a “metaphor” that “cannot … be allowed to obscure the underlying principles that are in issue. … Rather, attention must be directed to the nature and extent of the inconsistency between the asserted native title rights and interests and the relevant common law principles.” 123 Hence, the skeletal principle as an aspect of the intersection is affirmed, and remains part of Australian jurisprudence, 124 but the High Court is endorsing the inconsistency of rights test as the method to deny recognition of exclusive native title rights. However, in the quotation, the joint majority referred to an inconsistency between “native title rights” and “common law principles ”, not between native title rights and common law rights. If the quotation’s reference to common law “principles” is taken to be an exact reference, and if the skeletal principle is a common law principle, then the skeletal principle remains a direct basis to deny recognition of a native title right. However, the reference to common law principles can also be understood in the context that common law principles are not justiciable, and do not directly give rise to rights. Principles shape or explain rights, and the existence of a specific right may be reflected in a wider principle. The High Court was attempting to focus on a specific inconsistency, not an abstract one.

119 Yarmirr (FC) at 594. 120 Yarmirr FFC at [238] per Beaumont and von Doussa JJ: “In our view, to recognise such a claim would contradict first, the right of innocent passage allowed by international law rules which have been acknowledged by Australia both internationally and in the municipal legislation we have mentioned; and secondly, the common law public rights to fish, and to navigate, in the territorial sea and adjacent tidal waters. [239] …A power to exclude members of the public as now claimed would, in our opinion, contradict these common law principles which, along with the right of innocent passage, are, we think, of sufficient importance to warrant their characterisation as “skeletal” in the sense meant by Brennan J.” 121 Yarmirr (FFC) [575-632]. 122 Yarmirr at [94] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 123 Yarmirr at [97] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 124 Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31 at [104].

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(iv) The principle against antithetical rights: native title as subordinate to the common law

With the re-expression of the skeletal principle as metaphor, two open ended principles of right recognition have now appeared to replace it: native title rights which are “antithetical to fundamental tenets of the common law” 125 are not recognised, nor are those which “clash with the general objective of the common law of the preservation and protection of society as a whole”. 126 The assumption in these two descriptions is that traditional rights connecting Aboriginal people to land can be expressed in common law terms, but in their common law expression, these rights might threaten the very existence of society. The translation of traditional rights into “strictly legal rights” somehow has the capacity to create a common law right that overwhelms all other common law rights. It is not obvious how such heightened language is appropriate, or how such concerns come to be part of the law of native title, as they are unprecedented and unexampled, and do not reflect the language of native title recognition in comparative jurisprudence.

(v) Conclusion on the rules of right-recognition

The intersection determines which traditional rights will be translated into rights under Australian law in two ways. The first way is to affirm the primacy of the common law perspective: traditional rights incapable of expression in common law terms cannot be recognized by Australian law. Therefore, what emerges from the intersection is, by definition, a common law right. The intersection rests on the idea of an intersection between two living systems, not on the notion that traditional law (as a socially binding force) ceased to exist after sovereignty. Indeed, recognition as native title dictates that traditional laws be observed today. Therefore the idea of an intersection need not deny full respect to the Aboriginal perspective in determining the common law right. However, the intersection has been used in a second way, to deny full respect to traditional rights in their expression as common law rights, by subjecting the translation process to a rhetoric that contextualises native title rights as subordinate common law rights, in the form of three newly created rules of right-recognition: a doctrine of acceptable custom (traditional rights are subordinate to common law rights); the “skeletal principle” (native title is both different to common law rights and subordinate to common law doctrines/principles) and the complementary principle of “antithetical rights” (native title is subordinate to fundamental tenets of the common law). These principles of right recognition have been applied by the Federal Court to deny common law recognition of traditional rights .

125 Yorta at [77] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; similarly Ward at [20]-[21]. 126 Ward at [21] per Gleeson CJ, Gaudron, Gummow and Hayne JJ referring to Mitchell v MNR at [153]-[154] . However that case involved not Aboriginal title, nor an Aboriginal connection to land, but a claimed Aboriginal right: “that pre-contact warrior activities gave rise under successor regimes to a legal right under s. 35(1) to engage in military adventures on Canadian territory. Canadian sovereign authority has, as one of its inherent characteristics, a monopoly on the lawful use of military force within its territory.”

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An “intersection” does not exist in the comparative jurisprudence. Comparative jurisprudence directly recognizes native title as a form of ownership not derived from Crown grant. In Australian jurisprudence the rhetoric of the intersection has been used to create a context in which the distinction between traditional laws/traditional rights, and native title as a common law property right, is confused, and native title contextualised as subordinate to all other common law rights, especially those property rights recognized by the doctrine of tenure.

In Mabo the creation of the right-recognition doctrine of acceptable custom was justified by reference to a principle involving the recognition of traditional law under the common law of custom ( Case of Tanistry ). The concerns at which a doctrine of acceptable custom are directed are appropriate to either direct the recognition of Aboriginal law as law, in that such laws may confer rights or privileges inconsistent with the legal values of Australian law, or to the recognition of rights or immunities involving aspects of sovereignty: the right to use military force or an immunity from Australian law or legislative authority. But the recognition of native title is dictated by the values of Australian law. Why is the case-law expressing such concerns, in an inappropriately heightened language, in a property jurisprudence? It is to use the language of right recognition to create a rule of right priority. It is to create a context and level of rhetoric in which the common law right of native title is subject to the common law, as if it were not truly part of the common law. Callinan J describes native title in these very terms:

It seems likely that the first settlers would have regarded the two as incompatible, that whatever the Aboriginal peoples possessed by way of title to land was too foreign, fragile and elusive to withstand and survive the common law. Mabo was a brave judicial attempt to redress the wrongs of dispossession. .. The Court has endeavoured to find a way of recognising, and to a degree protecting, that anomalous interest without unduly disturbing the law of Australian property. 127 (footnotes omitted)

Although native title is a common law right, because it is not an “institution” of the common law, and because traditional rights are subordinate to common law rights, then native title, as a common law right , is subordinate to other common law rights.

Kirby J’s approach to native title similarly embodies a confusion between native title as a “traditional right” (a right under traditional laws and customs), and native title as a common law right, attaching the notion of fragility directly to the common law right of native title:

127 Ward at [969] per Callinan J.

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They [common law rights of which “easements represent an example”] are not rights, inherently fragile and liable to defeasance, arising outside that system ... 128

As a common law right, native title is inherently fragile.

(d) The content limitation of the native title right

On the introduction of Australian law, native title existed as a living common law right: a right to own and inherit property. The content of that right included the “incident” of inheritance. Present native title holders have acquired their common law right of native title when they inherited that right. Australian jurisprudence holds that because traditional law is not a direct source of law, the traditional legal system, appropriately designated as a “normative system” since the introduction of Australian law, ceases to be a living system for the purpose of giving content to the living common law right of native title. This approach denies full respect to the Aboriginal perspective.

(i) The date of sovereignty as the date of the intersection between “legal” systems – a frozen rights approach

The existence of native title depends on two things. Firstly, prior to the acquisition of sovereignty there were rights under traditional law, which, on the introduction of Australian law, became common law rights. Secondly, the traditional laws which gave rise to those rights are acknowledged today . The High Court has reconciled the tension between native title as an ancient yet living right by holding that, for laws and customs to be “traditional”, they must be “rooted in pre-sovereignty traditional law and custom,”129 but some “adaptation” 130 of pre-sovereign laws will not be fatal. However, there is no test for deciding what changes in traditional law are significant. 131 This tension is examined by resort to the considerations below.

The High Court’s approach is that every native title right that the common law recognizes entered Australian law at sovereignty, and has remained a living common law right unless it has been extinguished. The native title right is firmly rooted to its pre-sovereign existence. The Australian formulation of native title

128 Fejo at [108] per Kirby J. 129 Yorta at [53] per Gleeson CJ, Gummow and Hayne JJ. 130 Yorta at [83] per Gleeson CJ, Gummow and Hayne JJ: “[S]ome change to, or adaptation of, traditional law or custom … in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim” (emphasis in original) 131 Yorta at [82] per Gleeson CJ, Gummow and Hayne JJ; “In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant.”

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assumes the existence of a living and autonomous traditional system, which shapes the content of the native title right.

Australian legal history has never known an intersection between “legal” systems, the lex loci of the Australian Colonies has either been post-sovereign Australian law, or pre-sovereign Aboriginal law. However, the formulation of native title in Australian jurisprudence, as rights and interests under traditional laws and customs observed today, does create a legal paradox. Traditional laws and customs must be observed, as if part of a legal system, even though Australian law states that traditional laws are not a direct source of law, and observance of them in any way inconsistent with Australian criminal law is an offence. 132 It is well established that Aboriginal communities in the Northern Territory have a de facto “two laws” legal system, 133 imposition of the sanction called “payback” being the best known example of the observance of traditional law to the exclusion of Australian law. 134 The “two laws” paradox is unresolved, and can only be legally resolved by some form of de jure legal pluralism, or intersocietal law. But in Australia there is only one law, and so the various paths of legal pluralism are blocked. In order for native title to exist, traditional laws and customs must be observed even if they are contrary to Australian law.

However, in Yorta the High Court, for the moment abandoning talk of an intersection between “normative systems” and reverting to an intersection between “legal systems”, held that native title is an intersection between legal systems that occurred at the time of sovereignty:

Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are “recognised” in the common law. 135

This statement reflects a post-sovereign denial of Aboriginal “law”, but the effect of sovereignty was only to deny traditional law the status of law, not to deny that autonomous Aboriginal communities existed after sovereignty, and continued to observe traditional law. The description of traditional law as a subordinate “legal system” builds on the conceptualisation of traditional law as a lesser source of law. Choosing the date of sovereignty to determine the content of the intersection is inconsistent with both traditional law as a living system, and native title as a

132 These issues are canvassed at length in Northern Territory Law Reform Committee, Background Paper 1: Aboriginal communities and Aboriginal law in the Northern Territory (Darwin: NTLRC, 2003) [BP1] and Northern Territory Law Reform Committee, Background Paper 3: The legal recognition of Aboriginal customary law (Darwin: NTLRC, 2003). 133 BP1 op cit at 15-16, 30-35; similarly Williams N, op cit at 96-106 (Arnhem Land). 134 BP1 op cit at 27-28, 31-33, 135 Yorta at [77] per Gleeson CJ, Gummow and Hayne JJ.

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living common law right, and denies a meaningful role to the Aboriginal perspective manifested in the acknowledgement and observance of traditional laws today.

(ii) The frozen rights approach applied

Not only does Australian jurisprudence hold that no “rights” under traditional laws can come into existence after sovereignty, but, by denying the Aboriginal perspective, it allows a jurisprudence where the content of the native title right is determined by reference to the manner of its exercise at the date of sovereignty. This approach focuses attention on the manner of right exercise, rather than the purpose of the right.

Frozen title

The communal content of native title includes an exclusionary right of control, and while there may be changes under traditional law in the protocols by which control is asserted, the consequential in rem right of exclusive possession remains. However, in Australian jurisprudence, native title is not conceptualised as a true form of “title”. It is not a right to use the land as native title holders see fit, or to use land in the manner determined appropriate by the Aboriginal perspective today. As a bundle of control and use rights, freezing the content of those rights to their manner and form of enjoyment at sovereignty is a significant limitation on the content of the right.

Frozen use-rights

Once native title has been fragmented into a bundle of use-rights, native title becomes the search for particular rights. The requirement to trace a native title right back to sovereignty also focuses on a particularisation of the content of the right. 136 In Australian jurisprudence, the Federal Court has applied the frozen rights approach to limit the manner and form of enjoyment of a native title right to its pre-sovereign form. 137 The content of the right has become established by historically observed behaviour, rather than the purposes underlying the right. This approach fails to acknowledge a distinction between exercising a native right in a modern way, and the abandonment of native title rights.

136 Bartlett RH, “Humpies not Houses Or The denial of native title: A comparative assessment of Australia's museum mentality” (2003) 10 Aust Property LJ 83 [Bartlett Humpies]. 137 In Daniel v Western Australia [2003] FCA 666 at [1163] the determination recognized the right of the applicants to “camp, build shelters (including boughsheds, mias and humpies).” At [260] the court stated “I do not consider the evidence establishes the activity extends to building houses other than shelters I do not consider the evidence establishes the activity extends to building houses other than shelters”. Bartlett Humpies noted at 17 : “The claimants had a right to build humpies but not houses!”. He also discusses De Rose v South Australia [2002] FCA 1342 at [500]: “instances of ‘modernisation’ that would, collectively, indicate a break with traditional laws and customs.” However, in Yorta at [187] Callinan J clearly adopts a frozen rights approach: “The matter [of how far custom may evolve] went uncontested in Yanner v Eaton, although for myself I might have questioned whether the use of a motorboat powered by mined and processed fuel, and a steel tomahawk, remained in accordance with a traditional law or custom”.

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Canadian jurisprudence has attempted to accord full respect to the Aboriginal perspective in shaping the content of the right, 138 by seeing Aboriginal rights as a living rights under traditional law, and therefore considers that the “purposes underlying the rights must inform … the definition of the rights”, 139 rather than searching for a direct correlation between the pre-sovereign and modern practice. Aboriginal hunting/fishing rights are ultimately use rights exercisable “to the extent they themselves [Aboriginal communities] desired,” subject to limitations caused by “difficulties in transportation, preservation and resource availability, as well as those of limitations that they thought advisable to impose for the purposes of conservation.”140

(iii) A conclusion on the frozen rights approach

The requirement to embed the existence of the living right of native title in the past has “minimized the impact of Aboriginal rights on non-Aboriginal people”, 141 and rather than respecting native title as a part of the living Aboriginal connection to land, has minimised the Aboriginal perspective in shaping the content of the right. The requirement to trace a traditional right back to sovereignty emphasises the ancient right aspect of native title, and distinguishes it from other living property use-rights, freezing both the legal existence of native title at sovereignty, and the manner and form of its expression to that observed at sovereignty. The doctrine of frozen rights serves to emphasise Aboriginal difference as a basis for right limitation.

(e) A conclusion on the intersection as a process to deny full respect to native title

Native title is an attempt at reconciling two independent legal and social traditions, and this reconciliation is located in the “intersection” between two living systems: the Australian legal system and the Aboriginal normative system. Before traditional rights enter the intersection, the rhetoric of full respect is endemic in Australian jurisprudence. Yet once inside the intersection, newly created rules of right recognition apply. The intersection denies full respect to traditional rights, in their expression as common law rights, by subjecting the translation process to a rhetoric that contextualises native title as a subordinate common law right in the form of three newly created rules of right-recognition: a

138 R v Marshall; R v Bernard at [130] per Le Bel J: “The role of the aboriginal perspective cannot be simply to help in the interpretation of aboriginal practices in order to assess whether they conform to common law concepts of title. The aboriginal perspective shapes the very concept of aboriginal title.” Similarly R v Marshall (2003) 218 NSR (2d) 78 at [153]-[156] per Cromwell JA. 139 R v Gladstone [1996] 2 SCR 723 [Gladstone] at [71] per Lamer CJ and Sopinka, Gonthier, Cory, Iacobucci and Major JJ discussing traditional commercial fishing right: the “purposes underlying the rights must inform ..the definition of the rights”. Gladstone at [71] per Lamer CJ and Sopinka, Gonthier, Cory, Iacobucci and Major JJ 140 Gladstone at [54] per Lamer CJ and Sopinka, Gonthier, Cory, Iacobucci and Major JJ 141 Borrows J, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) [Borrows Recovering Canada] at 61.

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doctrine of acceptable custom; the “skeletal principle”, and the principle against “antithetical rights”. These principles are part of the process by which the native title right that enters the common law, before the application of conceptions of property or ownership, is compromised in its capacity to compete equally with other common law rights. The doctrine of frozen rights, by which the content of native title is limited to its manner and form at sovereignty, conceptualises native title as a lesser form of right.

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§4.4 Native title: the failure to search for meaningful title

To accord full respect to the traditional connection to land, the common law expression of the native title right would be in a form that, firstly, reflects the Aboriginal perspective, and secondly, treats the Aboriginal connection to land not simply as property, but as a true form of title or ownership. The extent to which the conceptualisation of native title under Australian law denies full respect to native title as a common law right of “property”, “title” or “ownership” is examined in this section.

(a) Espousal of full respect for the Aboriginal perspective in the expression of the common law right of native title

Australian jurisprudence begins the translation of traditional rights into native title with an affirmation of full respect for the indigenous perspective, in holding that native title is not confined to the language of the common law property lawyer. 142 Native title is the expression, in common law terms, of rights not necessarily known to the common law, 143 or “consistent” with the common law. 144 After translation, traditional rights exist as common law rights in a fundamentally changed context, that is, in a superimposed social and legal system that recognises only part of the wider Aboriginal social norm. The common law must take account of the importance of the right in the traditional context, as a basis for according the right appropriate meaning in the common law context. This approach is emphasised in Canadian jurisprudence. In R v Marshall; R v Bernard , the Canadian Supreme Court stated, with respect to translating Aboriginal practice into a modern legal right:

The Court’s task in evaluating a claim for an aboriginal right is to examine the pre-sovereignty aboriginal practice and translate that practice, as faithfully and objectively as it can, into a modern legal right. 145

The Court must consider the pre-sovereignty practice from the perspective of the aboriginal people. …This exercise in translating aboriginal practices to modern rights must not be conducted in a formalistic or narrow way. The Court should take a generous view of the aboriginal practice and should not insist on exact conformity to the precise legal parameters of the

142 Yarmirr at [11] per Gleeson CJ, Gaudron Gummow and Hayne JJ: “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.” 143 §3.2 (e) Native title includes rights unknown to the common law: a proposition of full respect . 144 Mabo at 59 per Brennan J: “The general principle that the common law will recognize a customary title only if it be consistent with the common law is subject to an exception in favour of traditional native title.” 145 R v Marshall; R v Bernard [2005] 2 SCR 220 at [48] per McLachlin CJ (Major, Bastarache, Abella and Charron JJ concurring).

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common law right. The question is whether the practice corresponds to the core concepts of the legal right claimed. 146 (emphasis added)

One looks for the “modern right”, including “a particular right, like title to land”, that best corresponds to the traditional right “from the aboriginal perspective”, 147 and for this purpose, “one must take into account the group’s … manner of life”. 148 The translation process attempts to meet a standard of full respect by denying the minutiae of the common law any controlling role in the translation process: “Absolute congruity is not required, so long as the practices engage the core idea of the modern right.”149

The High Court in Ward expressed a similar view, that native title requires a recognition of rights beyond the right of control:

… the right to be asked for permission and to speak for country is a core concept in traditional law and custom… it is, however, not an exhaustive description of the rights and interests in relation to land that exist under that law and custom. It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it. To speak of Aboriginal connection with “country” in only those terms is to reduce a very complex relationship to a single dimension...there are other rights and interests which must be considered, including rights and interests in the use of the land. 150

The common law expression of native title requires the translation of the “core concept [of the right] in traditional law and custom” into the modern legal right whose “core idea” is engaged by the traditional right. Ward is stating that while “native title” may consist of a right to control land (argued below to be a form of “title”), it will also consist of use-rights. It follows from the conception of native title as a bundle of primary, secondary and contingent communal, group and individual rights, that native title will be the bundle of proprietary and non- proprietary rights that each member of the native title group enjoys with respect to land, including, but extending beyond, notions of “title” to land. However, the existence of rights beyond the notion of title is not a basis to fragment the rights that engage the core idea of “title” or control (such as the right to speak for country) into something less than title.

146 R v Marshall; R v Bernard at [48] per McLachlin CJ. 147 R v Marshall; R v Bernard at [52] per McLachlin CJ: “Taking the aboriginal perspective into account does not mean that a particular right, like title to the land, is established. The question is what modern right best corresponds to the pre-sovereignty aboriginal practice, examined from the aboriginal perspective.” 148 Delgamuukw at [149] per Lamer CJ. 149 R v Marshall; R v Bernard at [50] per McLachlin CJ. 150 Ward at [90]-[91] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

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(b) Native title as property

That the extinguishment of native title was the extinguishment of a property right was affirmed in Mabo 1 , the Native Title Act Case and Ward .151 Accordingly, it is necessary to locate native title within a property jurisprudence. However, Australian jurisprudence has not protected native title in a way that is consistent with either comparative jurisprudence, or the protection of property rights under Australian law. The extent to which native title corresponds with the common law expression of “property” is examined below.

There are many justifications for property rights, and these justifications shape the conception of property. 152 In Australian law, property is a legally recognized power relationship with respect to a thing, a right to control or use a thing.

(i) Property: a right against the world

Property does not exist independently of legal recognition. 153 One consequence of the existence of a property right (often treated as the test of its existence) is the existence of a remedy for infringement of the right: legal protection endows a right with proprietary characteristics. 154 According to Blackstone, remedy was the sine qua non of property, as having a “property” right explained why a person, such as the master/husband/father could recover damages for injury to the servant/wife/child: the “superior” had “property” in the “inferior”; and also explained why the inferior could not recover damages for injury to the superior, the inferior had no property. 155

Theorists, such as Hohfeld and Honoré, see property as a series of in rem rights. 156 The law distinguishes between in personam rights against specific persons, and in

151 Ward at [111]-[113] per Gleeson CJ, Gaudron, Gummow and Hayne JJ after quoting from Mabo 1 and the Native Title Act Case: “The majority concluded that the human rights of the Miriam people to own and inherit property, and not to be deprived arbitrarily of their property, were denied or diminished.” 152 The literature is extensive and usefully summarised in: Lametti D, “Property and (Perhaps) Justice” (1998) 43 McGill LJ 665. 153 Bentham J, Theory of Legislation (1802) [CK Ogden (ed), Theory of Legislation (London: Routledge Kegan Paul, 1931)] at 113: “Property and law are born together and die together. Before laws were made there was no property; take away laws and property ceases”. 154 Wily v St George Partnership Banking (1999) 84 FCR 423, 426 where Sackville J acknowledged the circularity of such definitions of property: are remedies granted because an interest is proprietary, or is the interest proprietary because remedies are available? Gummow J noted in Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 at 135: “The degree of protection afforded by equitable doctrines and remedies to what equity considers confidential information makes it appropriate to describe it as having a proprietary character. This is not because property is the basis upon which protection is given, but because of the effect of that protection.” 155 3 Blackstone Commentaries at 142: “the inferior hath no kind of property in time company, care, or assistance of the superior, as the superior is held to have in those of the inferior, and therefore the inferior can suffer no loss or injury”. 156 Hohfeld see Chapter 1 footnote 25; Honoré A, “Ownership", in Guest A (ed), Oxford Essays in Jurisprudence (First Series) (Oxford: Clarendon Press, 1961) at 108-110.

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rem rights “against the whole world”. 157 Native title as a right “against the whole world to possession, occupation, use and enjoyment to the exclusion of all others” 158 is an in rem property right. A determination of native title is a determination of rights in rem .159 In personam rights bind only the parties standing in a personal relationship. Canadian jurisprudence has made clear that the description of native title as “personal” does not deny its proprietary status. 160 Native title enjoys the legal protection applied to other proprietary rights. 161 As an in rem right, native title falls within traditional common law conceptions of “property”.

(ii) Property as legally recognized power: a bundle of control and use rights

Property rights were once described in terms of an absolute right of control over a thing, 162 although both the common law and legislation have long contained right-limitation rules. 163 Property as a “bundle of rights” of somewhat fluid content is now the dominant conceptual paradigm. 164 In western economic theory, property and ownership are solutions to the problem of access to scarce resources. Property as control (embodying a right of exclusion) is also the basis for common law conceptions of ownership: control distinguishes mere property rights from rights of ownership. The Native Title Act recognizes rights as native title as long as they reflect a “connection to land”.165

157 The phrase “rights in rem” literally means rights to things but is usually described as meaning a right against the world. 158 See cases set out Chapter 1 footnote 16. 159 A determination of native title rights under the Native Title Act is a determination of rights in rem: Wik Peoples v Queensland (1994) 49 FCR 1; Western Australia v Ward (2000) 99 FCR 316 at 368-369; Daniel v Western Australia [2003] FCA 666 at [69]. Gumana v Northern Territory [2005] FCA 50 at [127]: “It determines the existence of the relevant native title for all purposes and binds third parties..” Jango v Northern Territory [2007] FCAFC 101 at [85]: “a judgment in rem the Court determines rights as against the whole world rather than inter partes”. 160 See §2.2(a)(ii) Canada: Aboriginal title. 161 Wik at 251 per Kirby J: “Ordinary common law principles for the protection of a proprietary right, found to have survived British settlement, extended to the protection of the Indigenous peoples of Australia, in exactly the same way as the law would protect other Australians.” 162 2 Blackstone Commentaries at 2 where property is defined as “that sole and despotic dominion…over the external things of the world, in total exclusion of the right of any other individual in the universe”. 163 Such as the common law doctrine of nuisance. Poirier M, “The Virtue of Vagueness in Takings Doctrine” (2002) 24 Cardozo L Rev 93 at 111 puts it elegantly: “principles of property and nuisance law limit what an owner owns”. 164 Yanner at [365] per Gleeson CJ, Gaudron, Kirby and Hayne JJ: “The concept of “property” may be elusive. Usually it is treated as a “bundle of rights’”; Penner JE, “The “Bundle of Rights” Picture of Property” (1996) 43 UCLA L Rev 711 at 713 (noting that Honoré’s conception of ownership) and its incidents and “[t]he bundle of rights analysis of property … serve as a ‘dominant paradigm’ under the aegis of which working lawyers and academic theorists may attend to particular problems in the law of property”. Similarly Munzer S, A Theory of Property (Cambridge: Cambridge UP, 1990) 22-36. The bundle of rights conception of property derives from Hohfeld. 165 Section 223 set out in text §1.2 An overview of the Australian law of native title. Ward at [14] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “As is now well recognised, the connection which Aboriginal peoples have with ‘country’ is essentially spiritual.”

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The High Court conceptualised property in the native title context in Yanner,166 a case which involved recognition of traditional rights to hunt crocodiles on land over which a “connection to land” existed, as follows:

The word “property” … refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of “property” may be elusive. Usually it is treated as a “bundle of rights”. But even this may have its limits as an analytical tool or accurate description … Nevertheless, as Professor Gray also says, “An extensive frame of reference is created by the notion that 'property' consists primarily in control over access. …[Property is] a legally endorsed concentration of power over things and resources.” …

Because “property” is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter. 167 (footnotes omitted)

This approach was further endorsed in Yarmirr,168 and brings together two strands of thinking: property as the recognized power-relationship with respect to a thing, and property as the “bundle of rights” held against the world which constitute the content of the power-relationship. Land use-rights, such as timber harvesting, hunting or fishing come within existing proprietary notions, but, per se , need not involve a claim to control land. 169

The bundle of rights description has the danger that any distribution of rights and privileges with respect to things can be called “property”, and so no particular right is regarded as essential. Yet, the bundle of rights analogy is useful in two ways. Firstly, it does envisage that the relative importance of any particular right, or accumulated weight of individual rights, may be different, and so the bundle may range from a thin bundle - “mere property” - to a thick bundle - “full-blooded ownership”. 170 Secondly, if a person owns a property right, the only theoretically possible rights not possessed in the bundle of rights will be those that have been somehow removed : “property theory’s dominant metaphor is in fact the inverse: property is not about identifying what substantive powers are in the bundle of rights, but rather is characterized by

166 Yanner v Eaton (1999) 201 CLR 351. 167 Yanner at [17]-[20]. 168 Yarmirr at [13] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “Exactly how the common law uses the word ‘‘property’’ is not without its own difficulties ... It can also be seen as consisting primarily in control over access to something”; similarly at [286] per Kirby J; all citing Gray K, “Property in Thin Air” (1991) 50 Cambridge LJ 252. 169 Wik at 169 Gummow J citing Mabo: “The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time.” Similarly R v Adams, text accompanying Chapter 2, footnote 137. 170 Harris JW, Property and Justice (Oxford: Clarendon Press, 1996) at 29.

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specifying what powers and rights have been removed.” 171 The inconsistency of rights test sees native title as a bundle of removable rights.

(iii) Property as commodity: value and alienation

Property, as either control of access to resources or the possession of resource use-rights, emphasises that property is valuable. Property as valuable right is a test for the existence of property in the jurisprudence concerning the acquisition of “property” within the meaning of the Australian Constitution. 172 It can be accepted that native title control or use rights are valuable.

The idea of an unrestricted right of alienation as part of the property right is also a part of the western economic commoditisation of property rights, in enhancing the value and utility of property as a right of the resource access, but alienation is not an inherent aspect of control or use. An often cited legal test for recognition of a property right is that set out in National Provincial Bank Ltd v Ainsworth :

Before a right or interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability. 173

The Ainsworth approach to property emphasises the assignability of resource control or use benefits. However, restrictions on alienability (assumptions of right by third parties) have consistently been rejected as a basis to deny that a right is a property right, 174 and also rejected as a basis to deny that native title is property. 175

171 Lametti D, op cit at 704. 172 Section 51(xxxi) of the Constitution creates the power of Commonwealth to compulsorily acquire “property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws”. Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290 per Starke J: “property” extends to “every species of valuable right.” In Mabo at 111 per Deane and Gaudron JJ considered that the extinguishment of native title was an acquisition of property under the Constitution. 173 National Provincial Bank Ltd v Ainsworth [1965] AC 1175, at 1247-1248; adopted in R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 347; cited in Mabo by Brennan J. 174 National Trustees Executors and Agency Co v FCT (1954) 91 CLR 540 at 583 per Kitto J: “It may be said categorically that alienability is not an indispensable attribute of a right of property according to the general sense which the word “property” bears in the law.” Gummow J in Yanner at [85], noted that a common law debt was not assignable, but was nevertheless property, as was a life estate. United States v Paine Lumber Company 206 US 467, 473 (1907): “The restraint upon alienation must not be exaggerated. It does not of itself debase the right below a fee simple.” 175 Brennan J at 51: “It would be wrong, in my opinion, to point to the inalienability of land by that community and, by importing definitions of `property' which require alienability under the municipal law of our society [fn: Ainsworth] to deny that the indigenous people owned their land”. similarly Yarmirr at [287] per Kirby J.

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(iv) Conclusion on native title as property

Native title in the hands of the Aboriginal community is the right of exclusive possession against the whole world. 176 To the extent that a native title right does not include a right of exclusive possession, it includes use-rights which manifest the same proprietary characteristics as other forms of right to which the label “property” attaches. Native title has entered Australian law as a property right.

(c) Native title as title and ownership

Title means ownership. Native title is a property right, but in Australian jurisprudence, its status as a true form of title, a right akin to ownership, has been denied. Canadian jurisprudence is clear that the idea of a native “title” indeed “takes us back to the beginnings of the notion of title”, and that, as “title”, indigenous rights “compare with the core notions of common law title to land”.177 Native title as communal ownership is to be distinguished from the recognition of native title rights held by individuals, and the recognition of traditional law.

(i) Title is ownership

The connotation of “title” is that of ownership. Blackstone saw title as the right of an “owner” to possess land. 178 According to Cheshire and Burn: “‘Ownership’ is .. a title to a subject matter .. that is good against the whole world.” 179

In New Zealand and US jurisprudence, native title is ownership .180 The New Zealand Court of Appeal expressed the proposition simply: Maori title “is a residual category of ownership not dependent upon title derived from the Crown”. 181 In Canadian jurisprudence exclusive possession is a test of ownership, 182 and Aboriginal title is a right of exclusive possession, described sometimes as a form of “ownership” distinct from an estate in fee simple, and

176 §4.2(b)(ii) The centrality of the community: the locus of exclusive possession. 177 R v Marshall; R v Bernard at [61] per McLachlin CJ: “The search for aboriginal title, by contrast, takes us back to the beginnings of the notion of title. Unaided by formal legal documents and written edicts, we are required to consider whether the practices of aboriginal peoples at the time of sovereignty compare with the core notions of common law title to land. It would be wrong to look for indicia of aboriginal title in deeds or Euro-centric assertions of ownership. Rather, we must look for the equivalent in the aboriginal culture at issue”. 178 2 Blackstone Commentaries 195: “title .. is the means whereby the owner of lands has the just possession of his property.” In Ward at [94] Gleeson CJ, Gaudron, Gummow and Hayne JJ noted the “portmanteau expression…possession, occupation, use and enjoyment ... to the exclusion of all others” traditionally constitute “the description of some common law title to land”. 179 Cheshire GC and Burn EH, Modern Law of Real Property (16 ed) (London: Butterworths, 2000) at 26; similarly Megarry R and Wade HWR, Law of Real Property (6 ed) (London: Sweet & Maxwell, 2000) at 93: Under the heading “Ownership”, state ownership is "the best ascertained right to possession", its content is "the right to recover possession", and thus "Possession as a substantive root of title, is a standing usage of English lawyers and landowners.” 180 §2.2(a)(ii) Aboriginal title as a property right and §2.2(a)(iii) Indian title as a property right 181 Ngati Apa at [40] per Elias CJ further quotations set out Chapter 2 footnote 20. 182 Delgamuukw at [156] per Lamer CJ: “Exclusivity is a common law principle derived from the notion of fee simple ownership”.

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sometimes as a proprietary interest in land with a sui generis content. 183 Canadian and US jurisprudence hold that Aboriginal title is an exclusive right to use all things on or under the land, such as trees and minerals, a right not derived from historic use, but as a consequence of having the right to the land. 184

English law has no true jurisprudence of “ownership” of land, 185 because the Crown in England has fictional absolute ownership, 186 and all other persons hold lesser interests, which may be capable of also being called “ownership”. 187 Colonial constitutional law is different, and vesting of allodial title in the Crown by legal fiction by does not form part of Australian law. 188

(ii) Title as exclusionary rights of control

Under the common law, title means “exclusionary rights of control. That is what it means and has always meant.” 189 Proof of a right to control land is proof of title, and of rights akin to full-blooded ownership. However, “one cannot produce a definitive catalogue … of the control-powers” a person may exercise over a thing. 190 While the right of exclusion is an indicium of ownership, 191 it is not

183 §4.4(d) Native title as a property right with sui generis content. 184 §2.2(a)(ii) Aboriginal title as a property right and §2.2(a)(iii) Indian title as a property right. 185 Cheshire and Burn op cit at 26: “English law never applied the conception of ownership to land” …All titles to land are ultimately based upon possession in the sense that the title of the man seised prevails against all who can show no better right to seisin. Seisin is a root of title, and it may be said without undue exaggeration that so far as land is concerned there is in England no law of ownership, but only a law of possession…‘Seisin ... is an enjoyment of property based upon title, and is not essentially distinguishable from right.’” Calder at 368 per Hall J: “Possession is of itself at common law proof of ownership” citing the Cheshire and Burn 10 th ed (1967). Megarry and Wade op cit at 93: “English law knows no abstract ownership, as opposed to the right to recover possession”. 186 Megarry and Wade op cit at 93. See §5.1(b) Allodial title. 187 Fejo at [43] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ: “An estate in fee simple is, “for almost all practical purposes, the equivalent of full ownership of the land” and confers “the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination” (footnotes omitted). Sandhurst Trustees Ltd v 72 Seventh Street Nominees (1998) 45 NSWLR 556 at 563 “Distinctions between the Crown's ownership of land and the ownership of any other person are almost untraceable and do not seem to have any continuing practical importance… The rights conferred by fee simple ownership are so complete and the further rights of the Crown under its dominion or lordship are so vestigial that it is commonplace to speak of the Crown's ownership as a fee simple”. 188 §3.2 (d) English law, modified to fully respect native title. 189 R v Marshall; R v Bernard at [77] per McLachlin CJ: “As discussed, the task of the court is to sensitively assess the evidence and then find the equivalent modern common law right. The common law right to title is commensurate with exclusionary rights of control. That is what it means and has always meant. If the ancient aboriginal practices do not indicate that type of control, then title is not the appropriate right. To confer title in the absence of evidence of sufficiently regular and exclusive pre-sovereignty occupation, would transform the ancient right into a new and different right. It would also obliterate the distinction that this Court has consistently made between lesser aboriginal rights like the right to fish and the highest aboriginal right, the right to title to the land”. Similarly Delgamuukw at [156] per Lamer CJ. 190 Harris op cit at 31; similarly Sutton at footnote 73 makes the same point with respect to traditional rights.

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clear how the right to control land by exercising a power to exclude strangers fits within the conception of a bundle of rights. An often quoted definition of property, highlighting property as a state sanctioned power relationship, states that property is anything to which the following label can be attached:

To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed: Private citizen. Endorsed: The state. 192

While the absence of a general right to exclude does not deny the categorisation of a right as property, the right of exclusion is fundamental in that it enhances or enables the enjoyment of all other property rights. The fundamental relationship between the right to exclude and the bundle of property rights was illustrated in Loretto v Teleprompter Manhattan CATV Corp. 193 In that case the US Supreme Court ruled that government authorized placement of cable television boxes on the roof of a building was a violation of the building owner’s right to exclude, and required the payment of compensation. By denying a right to exclude, even from a part of the whole, “government does not simply take a single ‘strand’ from the ‘bundle’ of property rights: it chops through the bundle, taking a slice from every strand.”194

Australian jurisprudence holds the right to exclude to be an essential feature of ownership. 195 In New Zealand jurisprudence, Maori control of land is equated to ownership:

[the land] was part of the territory in respect of which the two appellant Maori tribes exercised exclusive dominion and control, and therefore must be deemed to have been owned and occupied by those two tribes respectively according to their customs and usages .196

Because the common law is recognizing Aboriginal title, Canadian jurisprudence interprets the right of exclusionary control in accordance with the Aboriginal perspective. Exclusivity “is a common law principle derived from the notion of

191 Honoré A, “Rights of Exclusion and Immunities against Divesting” (1960) 34 Tulane L Rev 453 at 463-64 holds that the right to exclude is paramount: “When a person has a right to exclude others generally from tangible property he stands, legally, in a special relation to the property.” 192 Cohen F, “Dialogue on Private Property” (1954) 9 Rutgers L Rev 357, 374. De Beer v Graham (1891) 12 NSWLR (E) 144, 146: “Property may be defined to be the exclusive right to the possession or enjoyment of something; such right may be limited in time or by conditions.” Similarly Gray, Thin Air op cit at 268: a “primordial principle” of property law is that a resource be “excludable”, that is, “if it is feasible for a legal person to exercise regulatory control over the access of strangers to the various benefits inherent in the resource”. 193 Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982) 194 Loretto v Teleprompter Manhattan CATV Corp 458 US at 435. 195 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [43] per Gleeson CJ: “An owner of land does not have to justify refusal of entry to a member of the public, or of the press. The right to choose who may enter, and who will be excluded, is an aspect of ownership.” 196 Re the Ninety Mile Beach [1963] NZLR 461, 467 per North J.

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fee simple ownership and should be imported into the concept of aboriginal title with caution …proof of exclusivity must rely on both the perspective of the common law and the aboriginal perspective, placing equal weight on each.” 197 The right of exclusive control was further explained in R v Marshall; R v Bernard : it is not exclusivity or absolutist notions of control that establish title, but notions of “effective control”. 198

The Aboriginal connection to land includes the right to speak for country, a communal right of exclusionary control, 199 and the common law expression of this right is a right of exclusive possession. 200 Accordingly, Australian jurisprudence should see native title as a form of title and ownership.

(iii) Native title as a bundle of rights: the denial of meaningful title

The preceding analysis has argued that native title at the communal level is a right of exclusive possession and therefore a true form of title and ownership. Given that, prior to extinguishment issues, native title is a right to exclusive “possession, occupation, use and enjoyment of land”, 201 is the distinction between native title as bundle of rights (of which exclusive possession is one), and native title as title legally meaningful? The answer is that the distinction is significant in the most fundamental way. What is respected under the Australian conception of native title is not a or the communal right to the land. In discarding exclusive control as the essential touchstone of the common law conception of “title”, and seeing control as one of a bundle of undifferentiated property rights, the conceptual door is opened for the notion of native title as a bundle of co-existing rights over land.

Unless native title is constructed as the accumulation of a bundle of rights, it is a true form of title or ownership, and therefore the grant of an estate in fee simple (fee simple “ownership”) over native title land must be explained in terms of the granting rights over land already owned by another. The conceptualisation of native title as a bundle of rights means that the grant of an estate in fee simple need only be examined in terms of a grant of a bundle of competing rights to land. The legal issue is now: Which rights prevail in the case of an inconsistency of rights?; not: How has Aboriginal ownership been lost?

197 Delgamuukw at [156] per Lamer CJ . 198 R v Marshall; R v Bernard at [65] per McLachlin CJ: “It follows that evidence of acts of exclusion is not required to establish aboriginal title. All that is required is demonstration of effective control of the land by the group, from which a reasonable inference can be drawn that it could have excluded others had it chosen to do so. … This is what is meant by the requirement of aboriginal title that the lands have been occupied in an exclusive manner”. 199 §4.2(b)(iii) The right to speak for country as control over access. 200 Mabo at 217, cases cited Chapter 1 footnote 16. Ward at [89] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “The expression “possession, occupation, use and enjoyment ... to the exclusion of all others” is a composite expression directed to describing a particular measure of control over access to land”. Similarly Yarmirr at [13] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 201 Cases cited §1.2 An overview of the Australian doctrine of native title.

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Similarly, unless native title is constructed as a bundle of rights, there can be no partial extinguishment of the native “title” to land. Partial extinguishment is built on a two step foundation: that native title is not a true common law title, but a series of rights that must compete with other common law rights, and that, in this competition, other common law rights are true rights and true forms of property, but native title is not. Australian jurisprudence has not resolved the problem created by conceptualising native “title” as the recognition of rights extending beyond notions of control. Comparative jurisprudence has separated Aboriginal title from non-title rights. While title imports an element of control over land, mere use rights do not. Use-rights do not attempt to cover the field of possible rights than may exist over land, and therefore use-rights envisage co-existing rights. Title, as control, does not envisage co-existing control rights.

(iv) Native title as a communal title

Australian and comparative jurisprudence have recognized native title as a communal right. 202 While the common law recognizes communal property rights over land owned by another, 203 it does not have a clear jurisprudence of communal title or ownership outside the native title context. 204 Common law jurisprudence is the recognition of the one communal right shared among communal members, 205 not the recognition of a complexity of communal rights. Additionally, the distribution of decision-making rights with respect to land under traditional law does not necessarily parallel property law distinctions between owners and users. 206 Whatever the theoretical justification for recognition of a communal legal personality, it “is a recognition that the group can now claim legal rights and owe legal duties in a group name”. 207 The common law recognition of native title as a communal right provides full respect

202 See Chapter 2 - Comparative jurisprudence: native title as a property right. 203 See cases cited footnote 96. 204 Aboriginal communities were taken to have sufficient legal personality to enter into land surrender agreements in New Zealand, Canada, the American Colonies/USA. The Native Title Act creates a framework for the holding of native title by corporations which stand in a relationship of “trust” or “agency” to the native title holding group. Mantziaris C and Martin D, Native Title Corporations: A Legal and Anthropological Analysis (Leichhardt: Federation Press, 2000) at 114: “This is intended to avoid the problem of fixing obligations on the ever-fluctuating membership of a group of natural persons lacking legal personality.” In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, Gummow and Hayne JJ noted at [126] the statutory creation of a corporate entity: “is ‘a statutory person, a persona ficta created by law’ which [is] distinct from the personalities of the natural persons who constitute it”. 205 McNeil Common Law at 211-15 proposes the analogy of unincorporated associations (property rights vest in each member of the association for the time being) which may not be apposite, as unincorporated associations may involve a distinction between the unincorporated entity, and the members of the entity. There are many theories explaining corporate personality: Stoljar SJ, Groups and Entities: An Enquiry into Corporate Theory (Canberra: ANU Press, 1973). 206 Sullivan P, A sacred land, a sovereign people, an Aboriginal corporation. Prescribed Bodies and the Native Title Act (Darwin: NARU, 1997) 3-5. 207 Huntly CT, In search of an appropriate analogy for sports entities incorporated under associations incorporation legislation in Australia and New Zealand using broadly conceived corporate law organic theory (Perth, Murdoch University Digital Theses Program, 2005) Chapter 1 Corporate law theory general and organic theory in particular at 17-18, Salmond, op cit, at 351.

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to the Aboriginal perspective, in attempting to shape the common law right to land by conferring a legal personality on the community, enabling that community to hold a complexity of property rights over land.

(v) Native title rights held by individuals

Under traditional laws and customs, the right to exclude rests only at the communal level, 208 and so conceptions of “title” and “ownership” rest only at the communal level. But native title also involves the recognition of a bundle of subgroup and individual rights beyond the concept of title. While English law, and comparative native title jurisprudence, “did not have to attempt to reconcile notions of individual and communal rights” 209 to land, the Australian law of native title does. It is in the ability to separately enforce distinct rights that individual and collective rights are reconciled to each other at common law. Group rights may be asserted by the group as a whole. The representative action has been created by the common law as the means by which an individual or subgroup asserts group rights on behalf of the group, and applied to the protection of native title. 210

The determination of the incidents of native title, is the determination of a matter under Australian law. Similarly, the determination of an individual's native title rights is a matter of Australian law. However, the problem of individually held native title rights has not been completely resolved. Australian law must both espouse the proposition that individual native title rights, as common law rights, are enforceable against the whole world (if proprietary), 211 and reject the proposition that individual rights, as common law rights, must be enforceable against other members of the community. The failure to enforce an individual’s rights against community members can be explained by treating that right, not as a common law property right, but as a right directly arising under traditional law. 212 However, the enforcement of an individual’s native title right is not the enforcement of rights under traditional law, it is the enforcement under Australian law of rights “possessed under the sovereignty of the Crown”. 213 The tension in the conception of native title as somehow involving the direct recognition of a right under traditional law, posits native title is something not wholly within the common law system, and therefore as something distinct from common law rights.

208 §4.2(b)(ii) The centrality of the community: the locus of exclusive possession. 209 Yarmirr at [298] per Kirby J: “English law did not have to attempt to reconcile notions of individual and communal rights; similarly Strelein L, “Conceptualising Native Title” (2001) 23 Sydney L Rev 95 at 97. 210 Mabo at 62-63 per Brennan J. 211 §4.4(b) Native title as property. 212 Gumana v Northern Territory [2005] FCA 50 at [146]: “it is not the role of this Court under s 225 of the NTA to apply, administer or enforce traditional law…Consequently, it is not the Court’s task to adjudicate upon disputes that may arise under traditional Aboriginal law.” 213 Yarmirr at [204] per McHugh J: “Any title rights and interests possessed by Aboriginal or Torres Strait Island peoples under traditional laws and customs are possessed under the sovereignty of the Crown.”

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(d) Native title as a property right with sui generis content

A minority strand of Australian judicial opinion sees native title as a qualitatively different form of property, a sui generis form of property, and this approach to native title is to be distinguished.

The term sui generis means “of one’s or its own kind,” 214 and connotes something that is “unique”. 215 It has been applied to describe a range of legal interests, 216 including native title. Describing something as sui generis denotes that the thing is unlike something to which it is compared, rather than that the thing has any particular quality. Does the idea that native title might appropriately be called sui generis add anything to the understanding of it as a property right under Australian law? 217 The term sui generis does not appear in New Zealand or US jurisprudence, nor is there any relevant discussion of the uniqueness of native “title” in those jurisdictions. In New Zealand jurisprudence, native title is ownership. In US jurisprudence, native title is at the same time, a sovereign right to land and a property right under domestic law. The term sui generis is significant only in Canadian jurisprudence, where it has been applied to describe the both Aboriginal title 218 and Aboriginal rights. 219 Sui generis is a label applied to group the various ways in which Aboriginal title is different to fee simple ownership.

(i) Native title as a sui generis right

In Canadian jurisprudence, the discussion of Aboriginal title and Aboriginal rights as sui generis occurs in the context of a debate about whether native title is an aspect of the direct recognition of Aboriginal law, and thus a truly sui generis conception of something that is, at the same time, both a product of Aboriginal law and Canadian law, yet explained by neither, a form of “intersocietal law”. 220 If native title is the product of an intersocietal law, then the native title right is

214 Oxford English Dictionary (2ed, Oxford: Clarendon Press, 1989) 145. 215 Nygh P and Butt P (eds), Butterworths Australian Legal Dictionary (Sydney: Butterworths, 1997) 1132: “all of its own; unique”. 216 Such as pastoral leases: Wik at 242 per Kirby J. 217 The question posed in Borrows J and Rotman L, “The sui generis Nature of Aboriginal Rights: Does it Make a Difference?” (1997) 36 Alberta L Rev 9 at 9. 218 Canadian Pacific Ltd v Paul [1988] 2 SCR 654 at 678: “The.. Indian interest in land is truly sui generis. It is more than the right to enjoyment and occupancy although . . . it is difficult to describe what more in traditional property law terminology”. R v Marshall; R v Bernard at [129] per McLachlin CJ: “This Court has on many occasions explained that aboriginal title is a sui generis interest in land.”. 219 Delgamuukw at [82] per Lamer CJ: “In other words, although the doctrine of aboriginal rights is a common law doctrine, aboriginal rights are truly sui generis. 220 First set out in Slattery, Understanding Aboriginal Rights, at 736-41, 744-45. In Van der Peet [42] Lamer CJ adopted the proposition that Aboriginal title is “neither English nor aboriginal in origin: it is a form of intersocietal law that evolved from long-standing practices linking the various communities”. Similarly Delgamuukw at [113] per Lamer CJ; Borrows Recovering Canada op cit at 8, 10-12; Borrows J and Rotman L op cit at 37: “the sui generis nature of Aboriginal rights flows from their intersocietal nature”.

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axiomatically sui generis , and unlike any common law right. This approach has been advocated by Lamer CJ who also envisaged that in the recognition of Aboriginal rights, the Aboriginal perspective could shape the entire common law, though relevantly only the law of evidence was in issue:

[The] court must take into account the perspective of the aboriginal people claiming the right. . . . while at the same time taking into account the perspective of the common law such that true reconciliation will, equally, place weight on each. In other words, although the doctrine of aboriginal rights is a common law doctrine, aboriginal rights are truly sui generis , and demand a unique approach to the treatment of evidence which accords due weight to the perspective of aboriginal peoples. 221

Such an approach goes beyond notions of property,222 and remains inconsistent with native title as a “common law right”, or as an expression of right in common law terms. 223 The idea of an intersocietal law is not as an accurate description of native title under Australian law, where, on the basis of full respect for traditional rights, the Aboriginal perspective plays a role in shaping the expression of the common law right of native title.

(ii) Native title as property with a sui generis content

The content of native title is sui generis because it includes the translation of rights, at least some of which are of a kind unknown to the common law, into rights expressed in common law terms. In the absence of a right to control access to land, native title is a bundle of use-rights, such as the following:

(a) the right to live on the land, and for that purpose, to camp, erect shelters and other structures, and to travel over and access any part of the Recognition Area; (b) the right to hunt, gather and take the natural resources of the Recognition Area; (c) the right to access, maintain and protect places and areas of importance in the Recognition Area; (d) the right to engage in the following activities on the Recognition Area: (i) engage in cultural activities;

221 Delgamuukw at [81]-[82] per Lamer CJ, quoting from Van der Peet (quotation marks omitted) 222 Delgamuukw at [5] per Lamer CJ: “In Van der Peet, I held that the common law rules of evidence should be adapted to take into account the sui generis nature of aboriginal rights.” Similarly at [87] “Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.” 223 R v Marshall; R v Bernard at [48] per McLachlin CJ: the Court must “translate” aboriginal practice into “a modern legal right,” a process that seeks “a corresponding common law right”. Walters MD, “The Morality of Aboriginal Law” (2006) 31 Queen's LJ 470 at 517: the “Marshall and Bernard cases confirms that the idea of a truly intersocietal law is still more an ideal than a reality”.

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(ii) conduct ceremonies; (iii) hold meetings; (iv) teach the physical and spiritual attributes of places and areas of importance; and (v) participate in cultural practices relating to birth and death including burial rites, including the power to regulate the presence of others at any of these activities on the Recognition Area; (e) the right to make decisions about the use and enjoyment of the Recognition Area by Aboriginal people who acknowledge the traditional laws and customs of the native title holders; (f) the right to share and exchange natural resources obtained on or from the Recognition Area, including traditional items made from the natural resources of the Recognition Area. 224

Rights (a), (b) and (f) might be implied in a grant of tenure such as an estate in fee simple or a common law lease. In contrast, rights (c), (d) and (e) are rights shaped by Aboriginal difference and reflect the Aboriginal connection to land. It follows that as a bundle of common law rights to use and control land, but rights shaped by Aboriginal difference, native title will not have the same content as the bundle of rights conveyed by an estate in fee simple in accordance with the doctrine of tenure. However, native title is the expression of rights in common law terms. A conception of use-right is a fundamental aspect of what “property” means, and in this context, sui generis is a label attached to the content of the use-right, rather than a proposition that the use-right is qualitatively different to common law use-rights land. Canadian jurisprudence accepts this interpretation of sui generis as established:

I am cognizant that the sui generis nature of aboriginal title precludes the application of 'traditional real property rules' to elucidate the content of that title. 225 (emphasis added)

The description of native title as a property right with sui generis content does not provide a relevant basis to distinguish native title as a property right, from other property rights.

(iii) Native title as sui generis property

In Canadian jurisprudence, the issue of whether native title is a qualitatively different category of “property” has been raised by a conception that Aboriginal rights, which include Aboriginal title, are part of a jurisprudence which is itself sui generis , though not amounting to a form of intersocietal law.

224 Patta Warumungu People v Northern Territory [2007] FCA 1386 at [5]. 225 Delgamuukw at [130] per Lamer CJ, a proposition previously stated by the Supreme Court in St Mary's Indian Band v Cranbrook (City) [1997] 2 SCR 657 at [14] .

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The description of native title as sui generis begins in Guerin where it was adopted as part of the process of retreat 226 from the St Catherine's conception of native title as a “personal and usufructuary” right held during the goodwill of the sovereign:

It appears to me that there is no real conflict between the cases which characterize Indian title as a beneficial interest of some sort, and those which characterize it a personal, usufructuary right. …courts have almost inevitably found themselves applying a somewhat inappropriate terminology drawn from general property law. There is a core of truth in the way that each of the two lines of authority has described native title, but .. in neither case is the categorization quite accurate. It is true that the sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee. 227

Guerin began the process of re-conceptualisation of native title, commenced in a preliminary way in both Calder and Baker Lake , 228 by which the description of native title as a “personal” right was recast as a reference to its inalienability, and not as a description of it as an interest in land. 229 The modern conception of sui generis is that set out by Lamer CJ, first in Van der Peet , and in a more comprehensive form, in Delgamuukw :

Aboriginal title .. is also sui generis in the sense that its characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems. As with other aboriginal rights, it must be understood by reference to both common law and aboriginal perspectives. 230

When one turns to the reasons given by Lamer CJ as to why native title is sui generis , there is no relationship between those reasons and an idea of sui generis property. Lamer CJ holds that native title is sui generis for four reasons: “although the doctrine of aboriginal rights is a common law doctrine” there are two “sources” of native title: occupation pre-dating sovereignty and that

226 Osoyoos Indian Band v Oliver (Town) [2001] 3 SCR 746 at [41] per McLachlin CJ, Iacobucci, Binnie, Arbour and LeBel JJ referring to St Catherine's: “Since then, our understanding of the nature of aboriginal interests in land has continued to develop”. Delgamuukw at [112] per Lamer CJ: “The starting point of the Canadian jurisprudence on aboriginal title is … St Catherine's which described aboriginal title as a “personal and usufructuary right”. The subsequent jurisprudence has attempted to grapple with this definition, and has in the process demonstrated that the Privy Council's choice of terminology is not particularly helpful to explain the various dimensions of aboriginal title” (footnotes omitted). 227 Guerin at 382. 228 Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513 was a decision of the Federal Court. See discussion §6.3(e)(iv) Canadian jurisprudence. 229 Guerin at 382: “The nature of the Indians' interest is therefore best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians' behalf when the interest is surrendered. Any description of Indian title which goes beyond these two features is both unnecessary and potentially misleading”. 230 Delgamuukw at [117] per Lamer CJ.

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“relationship” between Aboriginal law and the common law, 231 native title is “inalienable”, 232 native title is “held communally”, 233 and the surrender or extinguishment imposes a fiduciary duty on the Crown.

Aboriginal occupation gives a right to possession, and thus a title to land, but the sole basis stated as a reason to distinguish Aboriginal occupation from occupation under the estate in fee simple, and what gives it a sui generis source, is that Aboriginal occupation arises “ before the assertion of British sovereignty”(emphasis in original). 234 Pre-sovereign occupation is the traditional source of native title in Canadian jurisprudence 235 which makes no relevant distinction between “occupation” by the members of Aboriginal communities, and common law conceptions of occupation. The common law recognition of communal occupation and communal ownership (but not communal rights) is unique to native title jurisprudence, but recognition of a communal legal personality “is a recognition that the group can now claim legal rights and owe legal duties in a group name”, 236 rather than an explanation of the quality of the rights held by the group. The second source of native title, as an aspect of an intersocietal law derived from a relationship between Aboriginal and non- Aboriginal communities, was noted earlier. A fiduciary duty also arises because of the relationship between Aboriginal communities and the Crown, not necessarily from the proprietary nature of native title. 237 However both the existence of a fiduciary duty, and the second source of native title, emphasise that Canadian jurisprudence sees native title and Aboriginal rights as part of a living relationship between indigenous peoples and the Crown, and not simply as the recognition of fragile rights frozen in time. The relevance of the principle that native title is alienable only to the Crown, to the conception of native title as ownership, is discussed in the next section.

231 Delgamuukw at [114] per Lamer CJ: “Another dimension of aboriginal title is its source . It … is clear that although aboriginal title was recognized by the Proclamation, it arises from the prior occupation of Canada by aboriginal peoples. That prior occupation, however, is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the physical fact of occupation, which derives from the common law principle that occupation is proof of possession in law: see McNeil Common Law Aboriginal … What makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty, whereas normal estates, like fee simple, arise afterward…What this suggests is a second source for aboriginal title - the relationship between common law and pre-existing systems of aboriginal law.” (emphasis in original). 232 See footnote 238. 233 Delgamuukw at [115] per Lamer CJ see text accompanying Chapter 2 footnote 47. In the common law, communal rights to land were “normally limited to an easement rather than to a fee interest”: Rose C, “The Comedy of the Commons: Custom, Commerce, and Inherently Public Property” (1996) 53 U Chi L Rev 711 at 761 234 See footnote 231. 235 See §2.2(ii) Canada: Aboriginal title. 236 Huntly CT, op cit footnote 207. 237 The sui generis nature of native title is a source of the fiduciary obligation on the Crown with respect to surrender or extinguishment of native title: Sparrow at 1108-09 and Chapter 3 footnote 22.

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The proposition that the sui generis nature of the native title means that native title cannot compete “on an equal footing with other proprietary interests” 238 has been expressly rejected in Canadian jurisprudence. Sui generis has meaning as a label 239 that distinguishes native title ownership from fee simple ownership, 240 which is sourced in an actual or presumed Crown grant, is alienable, and is not held communally, as at common law communities do not have a sufficient legal personality to be the recipients of a Crown grant.

(iv) Australian jurisprudence: native title as sui generis property

The description of native title as a sui generis right was previously used in Australian jurisprudence to describe native title as a personal right, and is now used by Kirby J and Callinan J in a unique line of jurisprudence which confuses traditional rights with native title.

Native title as a personal right to land

Three members of the High Court (Deane and Gaudron JJ and Kirby J) have used sui generis as a description of native title as a personal (non-proprietary) right, thus espousing the very proposition that Canadian jurisprudence used the notion of sui generis to reject. In Mabo Deane and Gaudron JJ saw native title as a personal right:

The … personal nature of the rights under it [“common law native title”] and the absence of any legal or equitable estate or interest in the land itself invite analogy with the kind of entitlement to use or occupy the land of another which confers no estate or interest in the land and constitutes a “mere equity’ …On the other hand, the rights … can, approach … ownership at common law. The preferable approach is that adopted in Amodu Tijani and Guerin namely, to recognize the inappropriateness of forcing the native title to conform to traditional common law concepts and to accept it as sui generis or unique. 241

The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. 242

238 Delgamuukw at [113] per Lamer CJ: “One dimension is its inalienability….This Court has taken pains to clarify that aboriginal title is only “personal” in this sense, and does not mean that aboriginal title is a non-proprietary interest which amounts to no more than a licence to use and occupy the land and cannot compete on an equal footing with other proprietary interests”. Van der Peet at [119] per L'Heureux-Dubé J (diss): Aboriginal title is “sui generis proprietary interest which gives native people the right to occupy and use the land at their own discretion”. 239 Delgamuukw at [113] per Lamer CJ “The idea that aboriginal title is sui generis is the unifying principle underlying the various dimensions of that title”. 240 Delgamuukw at [190] per Lamer CJ: “This sui generis interest is not equated with fee simple ownership”; and at [111]: “aboriginal title as a sui generis interest in land … is distinct from a fee simple”. 241 Mabo at 89 per Deane and Gaudron JJ. 242 Mabo at 110 per Deane and Gaudron JJ.

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Kirby J in Wik 243 also used sui generis to describe native title as a personal (and implicitly non-proprietary) right, but abandoned this approach in Yarmirr . 244 The conception of native title as an interest in land incapable of being a proprietary interest was not adopted in Mabo by Brennan J 245 or Toohey J 246 and was abandoned by the High Court in Ward .247 To the extent that sui generis implies non-proprietary, it is no longer part of Australian law.

Native title as a confusion between common law right and traditional right

A distinct jurisprudence developed by Kirby J assumes that native title is the direct recognition of a right under traditional law called “customary title”, and, confusing customary title with native title, holds that native title is sui generis and fragile:

Paragraph (c) [of s.233(1) of the Native Title Act ] then ties the sui generis and fragile customary title rights to the relative security of the common law, as re-expressed in Mabo .248 (emphasis added)

That customary title is “fragile” is correct. Customary title is not a right under Australian law. But it is meaningless to describe customary title as sui generis . It is only native title that can be sui generis in its common law expression, when compared to other common law titles. Callinan J exhibited a similar confusion: customary title is native title, and the traditional right is the common law right.

The judgments in Mabo made no claim to create native title. The holding is that native title existed before, and at the time of first non-indigenous settlement. …The result of that decision was effectively to make native title a foster child of the common law notwithstanding its fragility, elusiveness and other marked differences from its foster parent. ... Native title is not an institution of the common law. It must stand on its own foundations: it is sui generis . 249

243 Wik at 215 per Kirby J: “It seems safer to agree with Macfarlane JA in Delgamuukw that Aboriginal rights are sui generis, difficult if not impossible to describe in the terminology of traditional property law, being communal, personal and usufructuary.” 244 Yarmirr at [286] per Kirby J: “The common law has recognised a proprietary community title”. 245 Mabo at 39 Brennan J: “The theory that the indigenous inhabitants of a “settled” colony had no proprietary interests in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs.” Similarly at 53: “If it be necessary to categorize an interest in land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category.” 246 Mabo at 214 Toohey J equated native title to possessory title. 247 Ward at [111] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “traditional communal and personal [ie individual] proprietary rights and interests to the land”; similarly [88], [113] quoting Native Title Act Case; and 116] referring to Mabo 1: “Property" in this context includes land and chattels as well as interests therein and extends to native title rights and interests.” At [124]: “Finally, legislation may attract ..the RDA because it purports on its face to extinguish native title .. on less stringent conditions .. than those which govern the expropriation of the property of the people of another race.” 248 Yarmirr at [258] per Kirby J . 249 Yorta at [180] per Callinan J.

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The reasoning of Callinan J and Kirby J stand for no more than the proposition that traditional rights are sui generis when compared to common law rights, because they are not common law rights. 250 But native title is not the direct recognition of rights under traditional law. It is a right under Australian law.

(v) Conclusion

While the description of native title as sui generis in Canadian jurisprudence has a meaning, namely to posit Aboriginal title as a proprietary interest whose right content is different to the right content under an estate in fee simple because Aboriginal title content has been shaped by Aboriginal difference, the term sui generis has only exceptionally and idiosyncratically been used in Australian jurisprudence.

(e) Native title: alienation and ownership

Native title possesses the indicia of common law conceptions of ownership, except that native title is alienable only to the Crown. However, the doctrine of restricted alienability is consistent with native title as a common law property right.

The jurisprudence of Australia, Canada, New Zealand and the USA all hold that native title is inalienable, other than to the Crown/federal government. In all these jurisdictions except Canada, the principle of inalienability is sometimes expressed as the Crown having a right of “pre-emption”, 251 the usual form of expression in New Zealand, which affirms that native title is both property and a truly alienable right: “A right of pre-emption must denote that there is something to buy and sell.” .252 All other rights to deal with the land, apart from alienation, are unaffected by this doctrine. 253 To assert a Crown right of pre-emption is to assert a sovereign right, not a property right in the land. 254 If the doctrine of inalienability rests solely on executive or legislative act, there is no common law principle limiting native title as an ownership interest. In the American

250 As noted earlier, this approach had lead both Kirby J and Callinan J to see native title as fragile and defeasible to true common law rights: §4.3(e) A conclusion on the intersection as a process to deny full respect to native title. 251 Nireaha Tamaki at 562: “Her Majesty the exclusive right of pre-emption over such lands as the proprietors thereof might be disposed to alienate at such prices as might be agreed between the respective proprietors and persons appointed by Her Majesty to treat with them in that behalf.” Mabo at 88 per Deane and Gaudron JJ; Johnson v McIntosh at 585. The Nonintercourse Act described the original States as “having the right of pre-emption to such lands". 252 Ngati Apa at [213] per Tipping J. 253 Symonds at 391, per Chapman J: “The legal doctrine as to the exclusive right of the Queen to extinguish the Native title... operates only as a restraint upon the purchasing capacity of the Queen’s European subjects, leaving the Natives to deal among themselves, as freely as before the commencement of our intercourse with them.” The Maori right to grant leases over Maori title land is remains: §2.2(a)(i) Maori title as a property right. 254 Ngati Apa at [15] per Elias CJ: “The Crown’s right of pre-emption enabled it to regulate alienation of land in exercise of the rights of sovereignty, not property.”

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Colonies, 255 and after the American Revolution in the USA,256 and in Australia, 257 Canada 258 and New Zealand 259 there were executive or legislative acts prohibiting direct sales justified on the basis of protecting Aboriginal property against “great Frauds and Abuses”. 260 In comparative jurisprudence the prohibition on direct sales is also said to rest on the basis that it is a dictate of sovereignty261 or it is a common law principle, and these propositions are explored below.

A capacity to alienate land under traditional law has been accepted in Australia, 262 Canada, New Zealand and the USA. 263

(i) US jurisprudence distinguished: two laws and two sovereignties

There is a documented history of individuals, in their own right, purchasing land directly from Aboriginal communities, in the American Colonies. 264 These sales were generally validated by later legislation. Before 1700, 12 of the 13 original states had asserted the exclusive right to purchase land from Indians, Georgia

255 Set out in 3 Kent Commentaries (OW Holmes (ed) 12ed 1873) at 385-396. Weaver JC, The Great Land Rush and the Making of the Modern World, 1650–1900 (Montreal and Kingston: McGill- Queen's UP 2003) Table 4.1 at 136 lists such acts in the American Colonies: 1629 (New Netherlands) to 1757 (Georgia); Canada 1761-1763; Southern Africa 1836; and New Zealand 1840. 256 Nonintercourse Act, s.4 257 In August 1835 Governor Bourke of New South Wales issued a proclamation declaring such purchases of “vacant” lands within the colony to be void against the Crown, denying the validity of John Batman’s 7 June 1835 purchase of land in Victoria. The Colonial Secretary, Lord Glenelg, approving this proclamation cited protection as a reason, Aboriginal welfare would not be promoted “by recognizing in them any right to alienate to private adventurers the Land of the Colony”: 18 HRA (ser 1) 379. 258 Royal Proclamation 1763: see footnote 277 259 Treaty of Waitangi Article 2 set out in Chapter 2 footnote 16. 260 Article 4 of the Royal Proclamation 1763 set out in footnote 27. 261 §3.1(d) Native title to be reconciled with Crown sovereignty. 262 Mabo at 194 Toohey J noted: “But alienability itself is a relative concept and there was evidence in at least one of the claims made under the Land Rights Act of land being “given” by the few remaining survivors of one group to another group: see the Report by the Aboriginal Land Commissioner, Alligator Rivers Stage II land claim, ) (1981), pars 118, 119.” Similarly Gumana v Northern Territory [2005] FCA 50 at [217]; Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory [2000] FCA 923 at [47]-[52]. In Mabo Brennan J at 21-22 noted alienation of limited interests in land: “they absolutely refuse to sell their land at any price, but rent small portions to the beche-de-mer men and others.” 263 Pacific Canada: The possibility of a communal change in traditional ownership is recognised in Pacific Canada in the exchange in Calder at 372-374 between the trial judge and anthropologist Duff: “The owners in this sense had certain rights of alienation. They could give up the tract of land, lose it in warfare, but in practice it would not go to anybody outside of the tribe, that is, a tract of Nishga land might change hands but it wouldn't go to other than a Nishga family.” Similarly in Delgamuukw at [198] per La Forest J. Henderson J, “Mikmaw Tenure in Atlantic Canada” (1995) 18 Dal LJ 196 argues that Mikmaw tenure is inalienable. New Zealand: Maori customary land tenure recognized four methods of acquiring land: Discovery, Ancestry (take tupuna), Conquest (take raupatu), Gift (take tuku); see Smith N, Native Custom and Law Affecting Maori Land, (Wellington: Māori Purposes Fund Board, 1942). 264 In places such as New York, private land sales took place under the Dutch as early as 1629, and continued after British control in 1664: Lincoln C, Constitutional History of New York from the Beginning of the Colonial Period to the Year 1905 (Rochester, NY: Lawyers Co-operative Publishing Co, 1906. Reprint. Buffalo, WS Hein, 1994) Volume 4, 152-174.

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following in 1757. 265 After the Revolution, direct sales were prohibited by the Nonintercourse Act . Yet the Marshall trilogy held that there was, and always had been, a common law doctrine prohibiting direct sales, 266 because the only right acquired over Indian land by the imperial assertion of sovereignty was the Crown’s (later federal government’s) “exclusive right” to purchase land the Indians were willing to sell. 267 Direct sales to individuals took place in accordance with Indian law and affirmed the continuing existence of Indian law and Indian title over the land:

The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased; holds their title under their protection, and subject to their laws. 268

Indian land was “governed simultaneously by two distinct legal regimes”.269 While Indian sovereignty remained over Indian land, “leases” in favour of European settlers were granted under Indian law. 270 This would be the result where any indigenous lex loci continued.271 Only a sale to the federal government could take land outside the Indian legal system. The Supreme Court noted that its decision in Johnson v McIntosh involved “an inquiry … confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country.” 272 But that inquiry dictated not only consideration of “principles of abstract justice” but “principles …which our own government has adopted in the particular case, and given us as the rule for our decision”. 273 The Court stated that the pragmatic needs of sovereignty meant the direct sale of Indian lands other than to the federal government would not be recognized under US law .

265 Lincoln C, cit at 164. 266 Worcester v Georgia at 544-545. In Oneida I at 678 the Supreme Court said that the Nonintercourse Acts simply “put in statutory form what was or came to be the accepted rule–that the extinguishment of Indian title required the consent of the United States.”. 267 Worcester v Georgia at 545: “the exclusive right of purchasing such lands as the natives were willing to sell”. 268 Johnson v McIntosh, 594 per Marshall CJ. 269 Slattery B, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (Saskatoon: U Saskatchewan Native Law Centre, 1983), 29. 270 Karsten P, Between Law and Custom: 'High' and 'Low' Legal Cultures in the Lands of the British Diaspora – the United States, Canada, Australia, and New Zealand, 1600-1900 (Cambridge: Cambridge UP, 2002) at 119-124. United States v Joseph 94 US 614, 619 (1876): “If the defendant is on the lands of the pueblo, without the consent of the inhabitants, he may be ejected, or punished civilly by a suit for trespass, according to the laws regulating such matters in the Territory. If he is there with their consent or license, we know of no injury which the United States suffers by his presence, nor any statute which he violates in that regard.” Such leases occurred both before and after the Revolution. 271 Papua and New Guinea v Daera Guba (1973) 130 CLR 353 [Daera Guba] at 396: “The Administrator took a lease of an area of about .875 acres which included the well from a group of Papuans which included Daera Guba for the term of thirty years ..The lessors, eleven in all, were described as of the village of Poreporena.” While the lease was held invalid because the land had been ceded to the Crown in 1886, the capacity of the villagers to grant a lease over unceded land was not doubted. 272 Johnson v McIntosh, 572 per Marshall CJ. 273 Johnson v McIntosh, 572 per Marshall CJ.

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So, too, with respect to the concomitant principle, that Indian inhabitants are to be …deemed incapable of transferring the absolute title to others. However the restriction may be opposed to natural right, and to the usages of civilized nations, yet if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice. 274

The US doctrine of inalienability rests on avowedly pragmatic considerations, contrary to “natural right”. Marshall CJ distinguished between sales under Indian law and sales taking land outside the Indian legal system. Direct sales created interests in land under Indian law, and preserved Indian title as a right under US law. The doctrine of inalienability was justified as a pragmatic common law principle consistent with the subordination of Indian sovereignty, not as a conceptualisation of Indian title as anything less than full title to land. European discovery gave “the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.” 275

(ii) The limitation on alienation: protecting Aboriginal property rights

While the need to protect the property rights of Aboriginal people against great frauds and abuses by land speculators 276 is the basis of executive or legislative prohibitions against direct sales, 277 in Delgamuukw it was seen as one justification of a common law principle that native title is alienable only to the Crown. 278

(iii) The limitation on alienation: controlling colonial settlement

The need to control settlement was stated by the High Court to be a justification for the making of the Proclamation in Papua New Guinea “preventing any persons other than the Crown from purchasing … any interest in land”. 279 A similar concern was expressed by the Colonial Office as a reason for denying the

274 Johnson v McIntosh, 591-592 per Marshall CJ. 275 Worcester v Georgia, 544 per Marshall CJ. 276 New Zealand: In Symonds at 391 per Chapman J. Canada: Guerin at 383 per Dickson J states that policy basis for the requirement appearing in the Royal Proclamation as follows: “The purpose of this surrender requirement is clearly to interpose the Crown between the Indians and prospective purchasers or lessees of their land, so as to prevent the Indians from being exploited”. Similarly St. Catherine's at 53-55. 277 Article 4 of the Royal Proclamation 1763: ““And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians; In order, therefore, to prevent such Irregularities for the future…We do…strictly enjoin and require, that no private Person do presume to make any purchase from the Said Indians of any Lands reserved to the said Indians…but if … any of the said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us.” 278 See text accompanying footnote 289. 279 Daera Guba at 381. The court then said: “[T]he policy of the British Government ... was that … there should be no disturbance of the Papuans in the enjoyment of their use of the land except in so far as the Government might purchase land or acquire it .. to enable settlement to take place in a controlled fashion”

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validity of the sale of Aboriginal land to John Batman’s association. 280 Colonial settlement is both the dispossession of Aboriginal communities from their land, the dispossession by force if necessary, and the granting of exclusive possession to European settlers. The scale of military force needed to enforce such sales dictates that to control settlement is to exercise “sovereignty power”. 281

(iv) The limitation on alienation: the Crown as the source of title

New Zealand and Canadian jurisprudence contain a common law principle that because the Crown is the source of title with respect to those who do not possess pre-existing rights in land, settlers have no legal capacity to acquire title to land from native sellers. This rationale emphasises not a lack of native title holders’ capacity to sell, but a lack of settlers’ capacity to buy. 282

New Zealand jurisprudence

Symonds affirmed the doctrine of inalienability as based on the Treaty of Waitangi “securing” 283 a right of pre-emption in accordance with imperial policy, 284 but also proposed a wider doctrine for which Johnson v McIntosh and Worcester v Georgia were cited as sources. Chapman J held that:

The rule “that the Queen has the exclusive right of extinguishing the Native title to land,” is only one member of a wider rule, that the Queen has the exclusive right of acquiring new territory, and that whatsoever the subject may acquire, vests at once, as already stated, in the Queen. And this, because in relation to the subjects, the Queen is the only source of title. 285

280 Lord Glenelg's dispatch to Governor Bourke (18 HRA (ser 1) 379 to 381), in approving Bourke's proclamation prohibiting direct sales, stated that it was the policy of the Crown itself to determine where settlement takes place. He notes “the unauthorised settlements at Port Phillip”. The letter sent from Bourke (18 HRA (ser 1) at 153-158) states his concerns as the “policy of allowing the occupation of land so distant from the seat of government and other located parts of the colony”. 281 The effect of the “increasing unwillingness of Maori to sell land”, and the disputed land sale at Waitara in 1859, resulted in war: Riseborough H and Hutton J, National Theme C: The Crown's engagement with customary tenure in the 19th century (Wellington: Waitangi Tribunal, 1997) Chapter 2, page 3. 282 The view of Toohey J in Mabo at 194; similarly McNeil common law at 230-235. 283 Symonds at 390 per Chapman J: “But for their protection, and for the sake of humanity, the Government is bound to maintain, and the Courts to assert, the Queen's exclusive right to extinguish it [ie native title]. It follows from what has been said, that in solemnly guaranteeing the Native title, and in securing what is called the Queen's pre-emptive right, the Treaty of Waitangi, confirmed by the Charter of the Colony, does not assert either in doctrine or in practice any thing new and unsettled.” 284 The “valuable monopoly pre-emption provided” was seen as a hard won right under the Treaty of Waitangi: Daamen R, National Theme D: The Crown’s Right of Pre-Emption and Fitzroy’s Waiver Purchases (Wellington: Waitangi Tribunal 1998) at 9, drawing on Burns P, Fatal Success: A History of the New Zealand Company (Auckland: Heinemann Reed, 1989) 72–92. 285 Symonds at 390 per Chapman J: “If care be taken to purchase off the true owners, and to get in all outstanding claims, the purchases are good as against the Native seller, but not against the Crown. In like manner, though discovery followed by occupation vests nothing in the subject, yet it is good against all the world except the Queen who takes. All that the law predicates of such

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The legal doctrine as to the exclusive right of the Queen to extinguish the Native title... operates only as a restraint upon the purchasing capacity of the Queen’s European subjects. 286

Individual purchases could not extinguish native title, only Crown purchase could. This approach was consistent with US jurisprudence.

Canadian jurisprudence

In Canadian jurisprudence, native title as alienable only to the Crown was once supported by doctrine that Crown the granted native title, and native title holders “surrendered” that right. 287 At first, modern Canadian jurisprudence in Guerin and Van der Peet affirmed the Royal Proclamation (and later legislative acts) as the sole source of the prohibition on direct sales, such acts merely regulating the ability of Aboriginal communities “to sell their land directly” 288 by interposing an intermediary. However, as the Royal Proclamation did not extend to British Columbia, Lamer CJ in Delgamuukw offered a new suggestion:

I have suggested above that the inalienability of aboriginal lands is, at least in part, a function of the common law principle that settlers in colonies must derive their title from Crown grant and, therefore, cannot acquire title through purchase from aboriginal inhabitants. It is also, again only in part, a function of a general policy “to ensure that Indians are not dispossessed of their entitlements”. 289

There was, in fact, no prior discussion of the Crown as source of title. 290 In the absence of any reasoning to support the adoption of the principle of the Crown as source of title in Canadian jurisprudence, only New Zealand jurisprudence provides an explanation of the Crown as source of title.

acquisitions is that they are null and void as against the Crown: and why? because “the Queen is the exclusive source of title.” 286 Symonds at 391 per Chapman J. 287 §2.2(a)(ii) Aboriginal title as a property right. 288 Guerin at 340 per Dickson J: “The purpose of this surrender requirement is clearly to interpose the Crown between the Indians and prospective purchasers or lessees of their land, so as to prevent the Indians from being exploited.” Van der Peet at [270] per McLachlin J (diss): “The Royal Proclamation of 1763…stipulated that aboriginal people not be permitted to sell their land directly but only through the intermediary of the Crown.” 289 Delgamuukw at [129]. At [128]-129] Lamer CJ offered an additional suggestion: “[I]n my view, lands subject to aboriginal title cannot be put to such uses as may be irreconcilable with … the relationship that the particular group has had with the land … [T]here will exist a special bond between the group and the land in question such that the land will be part of the definition of the group's distinctive culture…It is for this reason also that lands held by virtue of aboriginal title may not be alienated. Alienation would bring to an end the entitlement of the aboriginal people to occupy the land and would terminate their relationship with it.” 290 Prior to this passage, in Delgamuukw Lamer CJ does not refer to “common law principle”, “purchase”, “settlers”, “colonies”, “derive”, “title” or “Crown grant” at all.

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Conclusion

The doctrine of the Crown as source of title, adopted in New Zealand, and more recently in Canadian jurisprudence, is a complete explanation of why native title is alienable only to the Crown. The doctrine does not seek to explain the proprietary nature of native title, only the incapacity of colonial settlers, under colonial law, to acquire title by direct purchase from Aboriginal communities. In the absence of such a doctrine, or the absence of executive or legislative acts creating such a doctrine, colonial law would not restrain the alienation of the property right of native title.

(v) The limitation on alienation as explained in Mabo: an affirmation of native title as property

In New South Wales, direct purchases of Aboriginal land by “treaty, bargain and contract” were declared “void and of no effect against the rights of the Crown” by Proclamation in 1835. 291 Colonial Office legal opinion considered such sales valid with the consent of the Crown. 292 However, in Mabo the Proclamation was not cited as a source for the doctrine that native title was alienable only to the Crown.

Brennan J: native title as an inalienable property right

In Mabo , Brennan J held that after sovereignty, native title was both inalienable “by the common law”, and alienable “only [to] the Crown”:

Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law. Its alienability is dependent on the laws from which it is derived. … The common law cannot enforce as a proprietary interest the rights of a putative alienee whose title is not created either under a law which was enforceable against the putative alienor at the time of the alienation and thereafter until the change of sovereignty or under the common law. …

Such a right or interest can be acquired outside those laws and customs only by the Crown [footnote: This result has been reached in other jurisdictions, though for different reasons: see Symonds; Johnson v McIntosh; St. Catherine's ]. Once the Crown acquires sovereignty and the common law becomes the law of the territory, the Crown's sovereignty over all land in the territory carries the capacity to accept a surrender of native title. The native title may be surrendered on purchase or surrendered voluntarily... 293

291 18 HRA (ser 1) 811-812. The Colonial Secretary, approving the proclamation stated: it would bode “ill for the real welfare of that helpless and unfortunate race by recognizing in them any right to alienate to private adventurers the Land of the Colony”: ibid 379. 292 18 HRA (ser 1) 389. Dr Lushington in an opinion dated 18 January 1836 advised that the purported grants of land by the Aborigines to John Batman’s association were “not valid without the consent of the Crown”. 293 Mabo at 59-60 per Brennan J.

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Brennan J at first simply asserts that native title is not alienable to any “putative alienee” (and this must include the Crown) “by the common law”. In the second paragraph Brennan J qualifies the earlier paragraph: “sovereignty … carries the capacity to accept a surrender of native title… on purchase”. The word “purchase” connotes transfer of a property right to the Crown, and this is consistent with Brennan J’s general equation in Mabo of native title to communal ownership. It was expressly stated by Brennan J that native title as alienable only to the Crown was consistent with it having a proprietary status. 294

Deane and Gaudron JJ: the personal right argument and the sovereignty argument

In Mabo Deane and Gaudron JJ stated that “a right of pre-emption” flowed from either of two bases. Firstly, as native title was a “personal” (ie non-proprietary) right, a notion since rejected, 295 it could be “surrendered” but not alienated. 296 Secondly, flowing from the doctrine of “discovery” set out in Johnson v McIntosh , and therefore adopting the US approach in this regard, native title could only be alienated to the discoverer, 297 a doctrine affirming the seller’s right to sell.

(vi) Conclusion: inalienability as consistent with native title as ownership

A Crown right of pre-emption, a limitation on the right of alienation of native title by native title holders, fully respects native title as property and ownership. In those jurisdictions that accord native title the status of ownership, alienation of native title to the Crown is alienation of ownership. It results in the Crown acquiring a perfect title to land. The proposition that native title is alienable only to the Crown is wholly explained by the principle that, with respect to settlers, the Crown is the source of title to land and therefore, under colonial law, settlers can only acquire title to land from the Crown. The limitation on alienation does not deny the capacity of native title holders to sell, or that the capacity of the Crown to purchase. The limitation denies that colonial settlers have a capacity to acquire rights in land, against the Crown , as those interests can only be created by actual or presumed grant from the Crown, or by common law custom. Axiomatically, colonial settlers cannot acquire rights in land by reason of “immemorial” custom, which in the colonial context, is custom pre-existing the assertion of sovereignty. 298

294 Mabo at 51 per Brennan J cited footnote 9. 295 §4.4(e)(4) Crown as the source of title. 296 Mabo at 110 per Deane and Gaudron JJ: “The rights of an Aboriginal tribe or clan entitled to the benefit of a common law native title are personal only. The enjoyment of the rights can be varied and dealt with under the traditional law or custom. The rights are not, however, assignable outside the overall native system. They can be voluntarily extinguished by surrender to the Crown.” 297 Mabo at 88-89 per Deane and Gaudron JJ. 298 The words "time immemorial" in English law mean the time when King Richard I commenced to reign in 1189: Mercer v Denne [1905] 2 Ch 538, 577. Looking at customs outside England, phrases such as “beyond living memory” are used: Abinabina v Enyimadu [1953] AC 207. R v Oxfordshire

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County Council: ex parte Sunningwell Parish Council [2000] AC 335 at [6]: “the law may presume a custom of such antiquity on evidence which a historian might regard as somewhat slender”.

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§4.5 The denial of full respect: a conclusion

The principle of full respect requires that, once traditional rights are perceived to exist, they are to be faithfully translated into the most apt common law right. Full respect for the common law right of native title as a form of title and ownership has been denied in the way Australian jurisprudence has conceptualised native title.

The task Australian jurisprudence has set itself is translating into common law rights, rights and interests perceived to exist under traditional laws and customs. Before Australian law can translate traditional rights it must have a strategy to understand difference. This strategy is embodied in the language of full respect: the recognition of rights and interests not necessarily known to the common law, or consistent with the common law.

Having begun with the language of full respect for the perception of traditional rights, Australian jurisprudence has invoked the notion of an intersection between the Aboriginal normative system and the Australian legal system to portray traditional rights, in their expression as the common law right of native title, as lesser rights. The intersection determines which traditional rights will be translated into rights under Australian law, and affirms the primacy of the common law: traditional rights incapable of expression in common law terms cannot be recognized as native title. What emerges from the intersection is a common law right. However, rather than being a process respecting the difference between Aboriginal and non-Aboriginal perspectives, the intersection contextualises traditional law/traditional rights/native title, as if this were a description of the one thing, as different to and subordinate to the common law by newly created rules of right-recognition: a doctrine of acceptable custom; the “skeletal principle”; and the “antithetical rights” principle. These principles of right recognition have resulted in traditional rights, in their common law expression, being either denied recognition or being seen as lesser rights under Australian law. The native title right that enters the common law is compromised in its capacity to compete with other common law rights.

Locating native title within the common law tradition means that the common law expression of native title is guided by conceptions of “property”, “title” and “ownership”. Comparative jurisprudence has recognized the communal right to land as ownership or a property right akin to ownership, and sees native title as a true form of title. The “effective control” or “exclusive possession” of land is directly recognized as a common law title whose incidents include possession of the land and all its resources. As a communal right of exclusionary control, native title enters Australian law as a true form of ownership and title. While Brennan J and Toohey J in Mabo equated the native title right to possess, occupy, use and enjoy land to the exclusion of all others to “ownership”,299 post-Mabo jurisprudence has declined equate “exclusive use of the land under traditional

299 §4.1(b)(i) The initial translation into: “communal ownership”.

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laws and customs [with] … ownership”. 300 The language of difference, and the metaphor of the bundle of rights, has made native title a compromised form of ownership and title. The development of native title jurisprudence in a context of partial extinguishment has obscured the recognition of the bundle of rights that are native title (prior to extinguishment) as equal to, or greater than, the bundle of rights possessed by holders of an estate in fee simple. The right of exclusionary control has not been equated to a form of title or ownership. The conceptualisation of native title as a bundle of property rights means that a Crown grant of interests in land need not be examined in terms of the granting rights over land already owned by another.

300 Bartlett Humpies at 14.

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CHAPTER 5 –RADICAL TITLE DOES NOT AFFECT THE CAPACITY OF NATIVE TITLE HOLDERS TO ASSERT PROPERTY RIGHTS ______

In Australian, New Zealand and Privy Council jurisprudence, native title is described as a “burden” on the “radical title of the Crown”. There is a confusion about the relationship between radical title and allodial title, and between radical title and native title, implying that radical title is a proprietary interest in land competing with or limiting native title. When properly understood, radical title is consistent with full respect for native title as ownership and property.

§5.1 Radical title: distinguishing imperium or dominium

Radical title as a manifestation of sovereignty ( imperium ) is to be distinguished from Crown ownership of land under domestic law (allodial title) or proprietary interests in land, manifestations of dominium .

§5.2 Radical title confers no proprietary interest in land

While early Privy Council jurisprudence could be interpreted as holding that radical title was a proprietary interest, Wik confirmed that by holding radical title, the Crown does not have allodial title, or an interest in land capable of expanding to allodial title. The Crown’s property rights in land are not a consequence of the Crown holding radical title, they must be otherwise acquired.

§5.3 The consequences of radical title as imperium

As radical title is not property, no proprietary interests in land can be granted out of radical title. Until it is removed, native title as a common law right burdens the sovereign authority of the Crown to deal with land.

§5.4 The parallel approach of US jurisprudence: fee title

US jurisprudence has developed a similar, jurisprudence: fee title as an executory and contingent interest in land devoid of possessory content.

§5.5 Conclusion: radical title as an affirmation of native title as ownership and property

Radical title does not affect the capacity of native title holders to assert property rights, equivalent to ownership, against the Crown or the whole world. As native title burdens radical title, the existence of radical title affirms the property rights of native title holders against the Crown.

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§5.1 Radical title: distinguishing imperium and dominium

In Australian, New Zealand and Privy Council jurisprudence, native title is described as a “burden” on the “radical title of the Crown”. 1 Any discussion of radical title indicates one thing, that it is not a certain concept. 2 The Crown’s sovereign “title” to colonial territory 3 is described as “radical title”, “final title” or “paramount title”, though sometimes dominium ,4 and sometimes imperium, 5 is suggested by these words.

(a) Imperium and dominium

There is a fundamental difference between the sovereign title to territory, and ownership of land, as explained in 1924 by Salmond in a passage adopted in Mabo :

Territory is the subject-matter of the right of sovereignty or imperium while property is the subject-matter of the right of ownership or dominium . These two rights may or may not co-exist in the Crown in

1 Amodu Tijani at 403: “a mere qualification of or burden on the radical or final title of the Sovereign”. Mabo at 52 per Brennan J: “the rights and interests in the land which they had theretofore enjoyed under the customs of their community are seen to be a burden on the radical title which the Crown acquires”, similarly 86-87 per Deane and Gaudron JJ; Wik at 127 per Toohey J; Yorta at [38] per Gleeson CJ, Gummow and Hayne JJ: “the radical title of the Crown was “burdened” by native title rights”. 2 Secher U, “A Conceptual Analysis of the Origins, Application and Implications of the Doctrine of Radical Title of the Crown in Australia: an Inhabited Settled Colony (Unpublished PhD Thesis, UNSW, 2003) at x (Preface): “the only legal consequence of the Crown’s acquisition of radical title which was authoritatively determined by the High Court, was that it enabled native title, a source of title not derived from the doctrine of tenure, to be accommodated within Australian land law”. 3 Roberts-Wray op cit at 625: “If a country is part of Her Majesty's dominions, the sovereignty vested in her is of two kinds. The first is the power of government. The second is title to the country”. The Crown’s sovereign title to the realm, or to the United Kingdom of Great Britain, is not called radical title. It has no specific designation. Maitland FW, Doomsday book and beyond (Cambridge: CUP, 1897) at 342: “The sovereign of Great Britain … is not the owner of Great Britain.” 4 Mabo at 80 per Deane and Gaudron JJ: “Nonetheless, the underlying thesis of the English law of real property remained that the radical title to (or ultimate ownership of) all land was in the Crown”. Dawson J at 162: “the Crown took the paramount title to (though not actual possession of) all the lands … so that all the lands were held of the Crown.” 5 Mabo at 180 per Toohey J: “In considering the consequences of the annexation of the Islands, the distinction between sovereignty and title to or rights in land is crucial. The distinction was blurred in English law because the sovereignty of the Crown over England derived from the feudal notion that the King owned the land of that country. It was ownership of the land that produced the theory of tenures, of obligations owed to the Crown in return for an estate in land. .. [citing McNeil Common Law at 108]: “(t)he former is mainly a matter of jurisdiction, involving questions of international and constitutional law, whereas the latter is a matter of proprietary rights, which depend for the most part on the municipal law of property. Moreover, acquisition of one by the Crown would not necessarily involve acquisition of the other.” Calder at 352 per Hall J (diss): an Aboriginal “right to occupy the lands …does not in any way deny the Crown's paramount title as it is recognized by the law of nations”. New Zealand: footnote 56.

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respect of the same area. Land may be held by the Crown as territory but not as property, or as property but not as territory, or in both rights at the same time. 6

Yet Salmond went on to say, in an explanation that confused the proposition above, but was not quoted in Mabo :

In accordance with the principles of feudal law all England was originally not merely the territory but also the property of the Crown; and even when granted to subjects, those grantees are in legal theory merely tenants in perpetuity of the Crown, the legal ownership of the land remaining vested in the Crown. So, in accordance with this principle, when a new colonial possession is acquired by the Crown and is governed by English law, the title so acquired is not merely territorial, but also proprietary. When New Zealand became a British possession, it became not merely the Crown’s territory, but also the Crown’s property, imperium and dominium being acquired and held concurrently. 7

However, well before Salmond or Blackstone (see below), the separation between sovereignty and property in English law had been completed. Modern jurisprudence tells us that Salmond’s statement is wrong: ownership of Maori land was not acquired when New Zealand became a British possession. 8 Similarly when the Crown acquired sovereignty over the Australian colonies, it did not thereby acquire ownership:

It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty. 9

To assert ownership would be to dispossess the holders of property rights and would deny them equality before the law in the enjoyment of their property rights. 10

6 Salmond J op cit at 554, quoted in Mabo at 43 per Brennan J. Similarly Yarmirr at [371] per Callinan J (diss); “rights of dominium (ownership or proprietary rights) and ... imperium.” 7 Salmond J, op cit at 554. 8 §2.2(a)(i) New Zealand: Maori title, especially Ngati Apa at [40] per Elias CJ: Maori title “is a residual category of ownership not dependent upon title derived from the Crown.” 9 Mabo at 51 per Brennan J. 10 §3.3 The principle of equality before the law dictates the recognition of native title. Mabo at 184 per Toohey J: “Even more startling is the consequence that, immediately on annexation, all indigenous inhabitants became trespassers on the land on which they and their ancestors had lived. That was not a consequence the common law dictated… being at odds with basic values of the common law”.

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(b) Allodial title

Allodial title is absolute ownership of land, ownership without acknowledgment of an overlord. 11 Allodial title is not granted by the Crown or state. When the state issues a land patent under an allodial system, it merely creates a record of who has acquired the allodium .

It was the feudal history of English land law that, when the king granted an interest in land, it was conditional upon the provision of feudal services by the grantee to the king. Such grants combined notions of imperium and dominium in that the grantee owed personal obligations directly to the king. 12 However, by Blackstone's time (1765) and the acquisition of sovereignty over New South Wales (1788), feudal obligations had all but disappeared and the conceptions of sovereignty and ownership had been clearly separated. It was accepted that in English law only the king had allodial title:

This allodial property no subject in England has; it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath absolutum et directum dominium : but all subjects' lands are in the nature of feodum or fee.…A subject therefore, hath only the usufruct, and not the absolute, property of the soil; or, as Sir Edward Coke expresses it, he hath dominium utile , but not dominium directum .13

In England allodial title arises by legal fiction, but this fiction was not part of the English law received into a colony with pre-colonial inhabitants, 14 and the Crown must therefore acquire allodial title.

11 2 Blackstone Commentaries 47: “wholly independent, and held of no superior at all”: Kent Commentaries, 485; “Held in free and absolute ownership”. Dobie WJ, Allodial Law (Edinburgh: Stair Society, 1925): “The main characteristic of allodial property is that it represents absolute ownership without service to, or acknowledgment of, any superior. …allodial holdings are now confined to (a) the properties and superiorities of the Crown …(b) udal lands in Orkney and Shetland ….” Mabo at 48 per Brennan J: “an absolute beneficial title (an allodial title) to the land”. 12 See §6.1(a)(i) The feudal context of title to land. 13 2 Blackstone Commentaries 2-3; similarly Pollock F and Maitland F, History of English Law Before the Time of Edward I [1898] (Cambridge: CUP 1968) at 232-240. What Coke said, citing Bracton, was: “And therefore the King in this sense cannot be said to be a Tenant, because he hath no superior but God Almightie;. …But though a Subject hath not properly Directum, yet hath he utile Dominium.” (footnotes omitted) in Butler C (ed), Coke E, The First Part of the Institutes of the Laws of England; or a Commentary upon Littleton (London: J and WT Clarke 1832) [Coke on Littleton], 592. 14 §3.2(d) English law, modified to fully respect native title, becomes Australian law.

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§5.2 Radical title confers no proprietary interest

The expression “radical title” came into being to explain the nature of the Crown’s right to colonial land. Radical title is a right devoid of proprietary content.

(a) Radical title as dominium: the early jurisprudence

The idea of radical title as a proprietary interest in land is consistent with dicta in early Privy Council cases. The search for the meaning of radical title is, mistakenly we shall see, said to begin with St Catherine’s. That case turned on the issue of whether certain lands were vested in the Province of Ontario or the Dominion of Canada, as the resolution of that issue would determine whether a timber harvesting licence granted by the Dominion was valid. Pursuant to the Constitution Act 1867 (UK), the Province received “the entire beneficial interest of the Crown in all lands …which at the time of union were vested in the [Dominion] Crown ….subject to …any interest … in the same”. 15 The issue was whether the existence of Indian title over those lands meant that the lands were not “vested in the [Dominion] Crown” in 1867. The Dominion argued that it did not acquire the lands until the 1873 land surrender agreement with the Salteaux, (North West Angle Treaty, No 3).

In St Catherine’s, Lord Watson for the Privy Council stated the [Dominion] Crown possessed a “present proprietary estate in the land, upon which the Indian title was a mere burden” 16 and went on:

There has been a great deal of learned discussion at the Bar with respect to the precise quality of the Indian right, but their lordships do not consider it necessary to an express an opinion upon the point. It appears to them to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished. 17

The Privy Council did not call this “present proprietary estate” radical title. It was the later cases of Attorney-General of Quebec v Attorney-General of

15 St Catherine's at 57. Section 109 of the British North America Act 1867 (UK) (now Constitution Act 1867) reads: “All Lands, Mines, Minerals and Royalties belonging to the several Provinces of Canada ... at the Union ... shall belong to the several Provinces ... subject to any trusts existing in respect thereof, and to any interest other than that of the Province in the same.” Aboriginal title was held to be such an “interest”. 16 St Catherine's at 58, 17 St Catherine’s at 55.

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Canada, 18 Amodu Tijani 19 and Mabo 20 that interpreted this passage as a reference to radical title. Pre-Calder Canadian jurisprudence approached native title on the basis that it was the grant of a permissive right over land the Crown owned. 21 That conclusion came about in this way. In St Catherine's , the Supreme Court treated the Crown’s “title” to land as a right of dominium , and did not call it radical title. The members of the Court held or assumed that the Crown had ownership of the land, and offered various justifications as to how the Crown came to acquire ownership. 22 The Privy Council held that the Crown had acquired “property” in the land by the Treaty of Paris 1763, 23 which ceded “sovereignty, property, and possession, and all other rights” held by the Crown of France. The Crown therefore acquired land over which, at the time, there was no Indian title, and eight months later, granted (ie created) Indian title under the Royal Proclamation , conferring a right that was “dependent upon the goodwill of the sovereign”, and therefore a right that did not affect the substantial and paramount “estate” of the Crown underlying Indian title. 24

18 Attorney-General of Quebec v Attorney-General of Canada [1921] 1 AC 401 at 406 per Duff J, quotations set out in footnote 26. 19 Amodu Tijani at 403 (text set out at page 129) where Viscount Haldane explains that: “Their Lordships have elsewhere explained the principles of this kind in connection with the Indian title to reserve lands in Canada” and St Catherine's is referred to. 20 Mabo at 47-48 (text set out at pages 133-34). 21 See Chapter 2 - Comparative jurisprudence: native title as a property right, 22 St Catherine's (1887) 13 SCR 577 at 599 per McRitchie CJ (Fournier J concurring): “[A]ll ungranted lands in the province of Ontario belong to the crown as part of the public domain, subject to the Indian right of occupancy”. At 608-9 per Strong J (diss) Indian title “sufficed to protect the Indians …[prohibiting] 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”. Henry J at 639: “I think that after the conquest of this country all wild lands, including those held by nomadic tribes of Indians, were the property of the crown.” However, Gwynne J (diss) held at 674-75: “I am of opinion that the tract in question did not become “public lands belonging to the Province of Ontario”… the Indians had an estate, title, and interest in the tract …which precluded the Provincial Government from interfering therewith in any manner, and which title, estate, and interest could only be divested and extinguished by a cession made in solemn manner by the Indians to Her Majesty”. 23 St Catherine’s at 53: The fall of Quebec and Montréal was “followed in 1763 by the cession to Great Britain of Canada with the sovereignty, property, and possession, and all other rights, which had at any previous time been held required by the Crown of France.” St Catherine's SCR 651 per Gwynne J (diss): “This argument was founded upon the contention, that the Indians were never recognised by the French Kings as having any estate, right, or title in the lands situate within the limits of the French possessions … and that the English title to those lands being derived from the treaty of Paris of 1763, the title of the Crown of England to the lands ceded by the French King by that treaty is the same as the title which the Kings of France formerly had.” Similarly Attorney-General v Cain [1906] AC 542 at 545. 24 St Catherine's 53-54: After the Treaty of Paris “ a royal proclamation was issued …[by which lands were] reserved to the said Indians… Their possession, such as it was, can only be ascribed to the general provisions made by the royal proclamation. …[The argument that the land] had never “been ceded to or purchased by” the Crown, [and therefore] the entire property of the land remained with them … is, however, at variance with the terms of the instrument, which shew that the tenure of the Indians was a personal and usufructuary right, dependent upon the goodwill of the Sovereign.”

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St Catherine’s did not address the issue of the Crown asserting rights over land subject to native title. The case stands for the proposition that, when the Crown acquires absolute title, and later grants a personal right over that land to indigenous inhabitants, that land can be described as “vested in the Crown”. However, the grant of the personal right means that the Crown's “estate” does not amount to a plenum dominium until native title is extinguished. Both propositions, that the Crown acquired ownership of the land under the Treaty of Paris, and that native title was created by the Royal Proclamation , have subsequently been rejected. 25

Attorney-General of Quebec v Attorney-General of Canada labelled what was discussed in St Catherine's as “radical title” without elaboration. 26 The approach in St Catherine’s was seemingly re-conceptualised in Amodu Tijani:

As a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with. A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the Sovereign where that exists. In such cases the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached. But this estate is qualified by a right of beneficial user which may not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from the intrusion of the mere analogy of English jurisprudence .27 (emphasis added)

The quotation is the most quoted explanation of the relationship between native title and radical title in Mabo ,28 and the significance of the italised expressions is explained below. However, by calling radical title an “estate”, the passage sees radical title as a proprietary right; though an “estate” to which no beneficial rights may be attached. Proper understanding of the statement depends on the particular context of the case, but the statement continues the confusion between sovereign and proprietary interests, and suggests that radical title is a propriety title competing with native title.

25 §2.2(a)(ii) Canada: Aboriginal title. 26 Attorney-General of Quebec v Attorney-General of Canada [1921] 1 AC 401 at 406 per Duff J: “The claim of Quebec is based upon the contention that at the date of Confederation the radical title in these lands was vested in the Crown, subject to interest held in trust for the benefit of the Indians, which, in the words used by Lord Watson in delivering judgement in St Catherine's, was only ‘a personal and usufruct right’”. 27 Amodu Tijani at 403. 28 It is quoted twice in Mabo: at 49 per Brennan J (in full) and at 84 per Deane and Gaudron JJ (abbreviated) and in Yarmirr at [12] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Elias T, “Nigeria's Contribution to Colonial Law” (1951) 33 J Comp Leg and Int Law 49 at 50 calls the quotation the locus classicus of “colonial land rights”, citing five Privy Council adoptions of it between 1926 and 1941.

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Amodu Tijani concerned the acquisition of sovereignty by treaty of cession, and the Privy Council contemplated not the acquisition of proprietary interests in land generally, but only those property rights over the island of Lagos (needed for the construction of a port) that were personal to the indigenous sovereign, and were expressly ceded by him to the Crown. 29 Under the treaty, the Crown acquired imperium, and whatever rights of dominium the king possessed. Viscount Haldane drew a distinction between sovereignty and property:

The general words of the cession are construed as having related primarily to sovereign rights only. …Where the cession passed any proprietary rights they were rights which the ceding king possessed beneficially. 30

The assumption in St Catherine’s, that on cession the Crown acquired proprietary interests in all land, was implicitly rejected. While the distinction between sovereignty and property was affirmed, in this case, both sovereign and property rights over the island of Lagos were acquired, at the same time and by the same act. But even where all the king’s property rights were ceded to the Crown, the Privy Council held:

In the light afforded by the narrative, it is not admissible to conclude that the Crown is generally speaking entitled to the beneficial ownership of the land as having so passed to the Crown as to displace any presumptive title of the natives. 31

As a communal title was held against the indigenous king under indigenous law, the king’s property rights were limited. 32 However, in describing the type of interest that the Crown acquired from the indigenous sovereign, the Privy Council used the language of radical title without distinguishing between the jointly ceded sovereign and property rights:

29 Attorney-General (Southern Nigeria) v John Holt & Co (Liverpool) Ltd [1915] AC 599 at 609: The king did “grant and confirm unto the Queen of Great Britain, her heirs and successors for ever, the port and island of Lagos, with all the rights, profits, territories, and appurtenances whatsoever thereunto belonging, and as well the profits and revenue as the direct, full, and absolute dominion and sovereignty of the said port, island, and premises, with all the royalties thereof, freely, fully, entirely, and absolutely.” 30 Amodu Tijani at 407. 31 Amodu Tijani at 407. 32 In the prior case of Attorney-General (Southern Nigeria) v John Holt & Co (Liverpool) Ltd [1915] AC 599 at 608 the Privy Council described the property right of the king as somewhat unsettled: “There seems no reason to doubt the opinion of the learned Chief Justice that the land had originally belonged to tribal communities, but that “during the decade between 1852 and 1862 the practice of alienation sprung into vogue, and another new feature, totally foreign to native law, which knew not writing, was introduced in the shape of written grants by the King of Lagos. The land in Lagos was originally attached to the stools of the white cap chiefs, who were in no way subordinate to the early Kings”.

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Chief Justice Osborne laid down as regards the effect of the Cession of 1861, that he was of opinion that “the ownership rights of private landowners, including the families of the Idejos, were left entirely unimpaired, and as freely exercisable after the Cession as before.” In this view their Lordships concur. A mere change in sovereignty is not to be presumed as meant to disturb rights of private owners; and the general terms of a Cession are prima facie to be construed accordingly. 33

[However,] the learned Chief Justice … has failed to recognise the real character of the title to land occupied by a native community. That title …is prima facie based … on a communal usufructuary occupation, which may be so complete as to reduce any radical right in the Sovereign to one which only extends to comparatively limited rights of administrative interference. In their opinion there is no evidence that this kind of usufructuary title of the community was disturbed in law, either when the Benin Kings conquered Lagos or when the Cession to the British Crown took place in 1861. 34

The Privy Council is discussing principles developed to distinguish a communal title held against the indigenous sovereign under indigenous law, from that sovereign’s own property rights under indigenous law, rights which have been ceded to the Crown. If, as in English law, indigenous law could be said to fully distinguish between property and possession, the local king could be said to transfer “ownership” to Crown, while the community retained its possession. As indigenous law did not make this distinction, the king’s property right was burdened by the communal “usufructuary” title, and this is why the burden of communal title may reduce the Crown’s proprietary rights, acquired by cession, to “limited rights of administrative interference”. Amodu Tijani is a discussion about rights under indigenous law (“native jurisprudence”), not English law (“English jurisprudence”), which was not introduced until two years after the cession, 35 and this is why the judgment is replete with warnings against using common law property conceptions to understand interests in land under indigenous law: the court is not describing a system of common law jurisprudence but a “system of native jurisprudence” or “native law”. 36

33 Amodu Tijani at 406. 34 Amodu Tijani at 409-10 35 The Treaty of Cession was signed on 6 August 1861. By Ordinance 3 of 1863 (Lagos), English law, “so far as local circumstances permit”, was introduced. 36 Amodu Tijani at 402-03, text accompanying footnote 27. Sunmonu v Disu Raphael [1927] AC 881 at 883 per Viscount Haldane: “It is very important to have clearly in mind what the native law relating to the land in Lagos really is. … there have been various misconceptions …but they were finally laid to rest by the decision in Amodu Tijani”. (emphasis added) In Kwamina Kuma v Kofi Kuma (1938) 5 WAC 4 the Privy Council (Lord Atkin) applied the Amodu Tijani passage to domestic disputes under indigenous law. In Bhe and Others v Magistrate, Khayelitsha, 2005 (1) SA 580 at [146] the Constitutional Court of South Africa in discussing succession to land, quoted the passage from Amodu Tijani and applied it to

page 131 Chapter 5 – Radical title does not affect the capacity of native title holders to assert property rights

It follows that Amodu Tijani does not address a native title created by Crown grant over land held by the Crown under allodial title, the situation in St Catherine's . Amodu Tijani is describing the rights an indigenous community holds against the indigenous sovereign under indigenous law, and now holds, by reason of cession, against the Crown. If the indigenous sovereign’s property right is burdened by the subjects’ “usufructuary” rights, such rights, may be so extensive as to reduce the sovereign’s rights to a pure legal “estate” to which no rights of dominium attach.

Both St Catherine's and Amodu Tijani involve the Crown’s actual or assumed acquisition of property rights by cession . St Catherine's is not a case about either radical title, or native title as a pre-existing right, but a case about allodial title and the grant of a permissive occupancy out of allodial title. Amodu Tijani is not a case about common law conceptions of property, but about indigenous law as a direct source of law, and about communal property rights under indigenous law. Jurisprudence which rests on the basis that the Crown has acquired rights of property under cession, cannot explain jurisprudence where no property rights have been ceded by indigenous communities to the Crown.

(b) Radical title as imperium: Crown ownership not established by the acquisition of radical title

The acquisition of sovereignty does not dictate Crown ownership of land or the extinguishment of native title. 37 Radical title as imperium rests on the basis that by the assertion of sovereignty, the Crown is not asserting property rights in land.

(i) Australian jurisprudence: radical title as a concomitant of sovereignty

In Mabo , Brennan J sourced his discussion of radical title to Amodu Tijani .38 Brennan J saw radical title as being, at the same time, two distinct things: “a

understanding indigenous law: “When dealing with indigenous law every attempt should be made to avoid the tendency of construing indigenous law concepts in the light of common law concepts.” (emphasis added) Similarly Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC) at [51]; Meek CK, Land Tenure and Land Administration in Nigeria and the Cameroons (London: HMSO, 1957) 79. 37 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title. 38 Mabo at 48-51. Brennan J to also refers to Nireaha Tamaki at 580. The Privy Council discussion of “radical title” there does not assist. At 580 all that is stated is “That it not appearing that the estate and interest of the Crown in the subject-matter of this suit, subject to such native titles (if any) .. are being attacked by this proceeding, the Court has jurisdiction to inquire whether as a matter of fact the land in dispute has been ceded by the native owners to the Crown”. The term radical title does not appear. Brennan J also refers to the following passage in Daera Guba; “I have also assumed, without deciding that the declaration of the Protectorate or the annexation by the British Government did not vest in

page 132 Chapter 5 – Radical title does not affect the capacity of native title holders to assert property rights postulate of the doctrine of tenure and a concomitant of sovereignty”. 39 Consistently with radical title as imperium , Brennan J said:

On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land. . . Native title to land survived the Crown’s acquisition of sovereignty and radical title. The rights and privileges conferred by native title were unaffected by the Crown’s acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power. 40

The approach sees radical title as a “concomitant of sovereignty”:

Recognition of the radical title of the Crown is quite consistent with recognition of native title to land, for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown's territory). 41

Brennan J is clear: radical title, “without more”, does not give the Crown any proprietary interest in land.

However, if the Crown's title is merely a radical title - no more than a postulate to support the exercise of sovereign power within the familiar feudal framework of the common law - the problem of the vesting of the absolute beneficial ownership of colonial land does not arise: absolute and beneficial Crown ownership can be acquired, if at all, by an exercise of the appropriate sovereign power. 42

Wik confirmed the Mabo approach to radical title. Gummow J emphasised:

the Crown the ultimate title to all the land in Papua subject only to any usufructuary or other rights of the Papuans, these to be determined by native custom.” Whatever “ultimate title” means, the Crown did not possess ultimate title in Papua New Guinea. 39 Mabo at 48 per Brennan J. 40 Mabo at 69 per Brennan J, similarly 180 per Toohey J: “The position of the Crown as the ultimate owner of land, the holder of the radical title, has persisted and is not really in issue in these proceedings. What is in issue is the consequences that flow from that radical title. …The blurring of the distinction between sovereignty and title to land should not obscure the fact that …”(t)he former is mainly a matter of jurisdiction, involving questions of international and constitutional law, whereas the latter is a matter of proprietary rights, which depend for the most part on the municipal law of property. Moreover, acquisition of one by the Crown would not necessarily involve acquisition of the other.” 41 Mabo at 50 per Brennan J. 42 Mabo at 54 per Brennan J.

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Radical title is that acquired upon the assumption of sovereignty (as understood in the law of nations) or, rather, upon settlement (as understood in that part of British constitutional law concerned with Imperial expansion). Radical title links international and constitutional law notions with those which support the private law of proprietary rights and interests in land. Thus, radical title was “a postulate to support the exercise of sovereign power within the familiar feudal framework of the common law”. The framework included the doctrine of tenures. Absolute and beneficial Crown ownership, a plenum dominium , was established not by the acquisition of radical title but by subsequent exercise of the authority of the Crown. 43 (citations omitted)

Toohey J was equally clear: “radical title does not of itself carry beneficial ownership”, 44 as was Kirby J: “Radical title is not a real title for property purposes. It is more in the nature of a political notion and in that sense a legal fiction. But property rights of any kind are not fictional.” 45 In Yarmirr the High Court explained the nature of radical title in terms of sovereignty:

The concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights and interests co-exist .46 (emphasis in original)

The separation of sovereignty and property was the starting point of the joint majority judgment, which repeated the language of burden, and added the language of native title as a compromised right:

The native title rights and interests could co-exist with that radical title and, although inherently fragile, could, so long as they existed, be seen as a burden on that radical title. 47

(ii) Australian jurisprudence: radical title as a postulate of the doctrine of tenure

In Mabo Brennan J also described radical title as a “postulate of the doctrine of tenure”, and Deane and Gaudron JJ held radical title to be a proprietary interest in land. 47A Both these approaches are consistent with native title as

43 Wik at 186 per Gummow J. 44 Wik at 127 per Toohey J. 45 Wik at 234-35 per Kirby J: “Radical title is not a real title for property purposes. It is more in the nature of a political notion and in that sense a legal fiction…Now a different source of title must be accommodated by the recognition of the continuance of native title as a burden on the Crown's radical title. Something more is needed to remove that burden, and to extinguish the native title, than a mere exercise by the Crown of rights of dominium in respect of the land.” 46 Yarmirr at [47] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 47 Yarmirr at [48] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 47A Mabo at 48 per Brennan J, at 86-87 per Deane and Gaudron JJ (text quoted on page 136)

page 134 Chapter 5 – Radical title does not affect the capacity of native title holders to assert property rights less than ownership, or as a lesser title to land than that possessed by the Crown.

View of Brennan J (Radical title expanding to allodial title) rejected in Wik

On Brennan J’s approach, property rights to land comprised two bundles: radical title, an undefined property right capable of expanding to absolute ownership, and native tile, a property right which, although it might appropriately be called ownership, was a right defeasible to skeletal principles of the common law and, as a fragile right, could be displaced by stronger common law rights. The proposition that radical title could be expanded to a plenum dominium was first set out in Mabo by Brennan J:

If a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Crown's title is thus expanded from the mere radical title and, on the expiry of the term, becomes a plenum dominium .48

Brennan CJ (dissenting) repeated this approach in Wik : the alienation of a leasehold “estate” vests the balance of allodial title in the Crown. 49 In Wik , all members of the High Court dealt with the argument that the grant of a lease thereby created in the Crown a reversion expectant which expanded radical title to absolute Crown ownership. Toohey J, Gaudron J, Gummow J and Kirby J all rejected the argument that radical title could “expand” to a plenum dominium .50 The argument was rejected for two reasons: as statutory rights to land (akin to leasehold rights) are not granted out of, or require the existence of, an estate in fee simple, allodial title or radical title, the

48 Mabo at 68 per Brennan J. 49 Wik at 91: “By exercise of a statutory power to alienate an estate in land, the Crown creates, subject to statute, a tenure between the Crown and the alienee. It follows that, subject to statute … where a leasehold estate is the only proprietary interest granted by the Crown in a parcel of land and the lessee is in possession, a legal reversionary interest must be vested in the Crown.” 50 Wik at 129 per Toohey J: “To speak, in relation to the Crown, of a reversion expectant …as expanding the Crown's radical title to a plenum dominium is, in my respectful view, to apply the concept of reversion to an unintended end. … Furthermore, if it is the reversion which carries with it beneficial title, why is that title not there in the first place? …There is a curious paradox involved in the proposition.” Wik at 155 per Gaudron J: “As a reversionary interest only arises on the vesting of a leasehold estate, there is no basis for the contention that, …on the grant of the first Mitchellton Lease, the Crown acquired a reversionary interest…and its radical title was thereby expanded to full beneficial ownership.” Wik at 186-190 per Gummow J: “Accordingly, I would reject the submission for the State that .. with respect to the grant of limited interests thereunder by the Crown, the necessary consequence is the acquisition by the Crown of a reversion expectant on the cesser of that interest, thereby generating for the Crown that full and beneficial ownership...” Wik at 233- 35 per Kirby J: “This theory ..[that] the “Crown's title is ... expanded from the mere radical title” [citing Brennan J in Mabo at 68] … is not consistent with the analysis of the reasoning of any of the Justices in Mabo [No 2]; nor with the Court's holding in that case. Nor is it consistent with earlier analyses of the Privy Council.” (footnotes omitted)

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Crown grant of a statutory interest did not dictate that radical title was thereby expanded to allodial title, 51 and, in any event, the doctrine of tenure was directed at the relationship between Crown and grantee, and if radical title existed as a postulate of the doctrine of tenure, it did not explain the existence of, or require the vesting of, allodial title in the Crown. 52

View of Deane and Gaudron JJ (radical title as proprietary title) abandoned

In Mabo Deane and Gaudron JJ, misapplying St Catherine's and Amodu Tijani, stated that radical title was a “proprietary estate” in land:

the effect of an applicable assumption that that interest was respected ..would not be to preclude the vesting of radical title in the Crown. It would be to reduce, qualify or burden the proprietary estate in land which would otherwise have vested in the Crown, to the extent which was necessary to recognize and protect the pre-existing native interest. 53

This approach was abandoned by Gaudron J in Wik .54

51 Toohey J at 128; “It has been said: "A reversion is the interest which remains in a grantor who creates out of his own estate a lesser estate" …The discussion of reversion in the standard texts invariably focuses on the holder of an estate in fee simple who grants some lesser estate, usually a life estate or lease. But that is not the case here.” Kirby J at 244: “The Land Acts regulate the grant of leases. They do not expressly confer on the Crown the estate necessary to grant a lease. …At the time of the enactments, it was assumed that the Crown exclusively enjoyed the power to grant leasehold and other interests simply as an attribute of its sovereignty. Only now, following Mabo [No 2], has it become clear that, contrary to the earlier understanding, with sovereignty came no more than a radical or paramount title”. Gummow J at 189 began with the proposition that “all land in Queensland was to be dealt with pursuant to statute. It was by legislation that interests in the land were to be granted by the Crown” and concluded at 190, by citing Davies v Littlejohn that the rights in the land “owe their origin and existence to the provisions of the statute.” 52 Toohey J at 128 (text accompanying footnote 14), In Mabo at 48-49, Brennan J had stated the same proposition: “The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant.” Allodial title does not owe its existence to Crown grant. In Mabo at 46 Brennan J had earlier noted: “The land law of England is based on the doctrine of tenure. In English legal theory, every parcel of land in England is held either mediately or immediately of the King who is the Lord Paramount; the term "tenure" is used to signify the relationship between tenant and lord not the relationship between tenant and land”. 53 Mabo at 86-87. 54 Wik at 156 Gaudron J stated, with respect to forfeited leases: “In other words, the effect of s 135 was, in that event, to assimilate the previously alienated land to land in respect of which the Crown had radical title, and not to land in respect of which it had beneficial ownership”.

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(iii) New Zealand jurisprudence

New Zealand law accepts a separation between imperium and dominium ,55 and sees “radical title” as an “notional” aspect of sovereignty. 56 Symonds described the “Crown’s right” against Maori, not as property, but as the exclusive right to purchase such lands as the Maori were willing to sell. 57

(iv) Canadian jurisprudence

Privy Council jurisprudence on appeal from Canada has followed St Catherine's .58 However, since the conceptualisation in Calder of Aboriginal title as a pre-existing right, the Supreme Court of Canada has not asserted that the acquisition of sovereignty resulted in any proprietary interest in land being vested in the Crown, or that the Treaty of Paris had this effect. Title to land was acquired by land surrender agreements with First Nations. 59 In any event, Provincial jurisprudence has variously equated radical title to imperium 60 or dominium . 61

55 Ngati Apa at [26]-[27] per Elias CJ: “It was the argument …[that] [b]efore Crown grant no customary property rights could be recognised because to do so would be to question the sovereign power. Thus …Stout CJ asserted ..”All lands of the Colony belonged to the Crown”. The error in this approach was…[the] equation of sovereignty with ownership (conflating imperium and dominium).” 56 Ngati Apa at [29] – [30] per Elias CJ: “the radical title acquired by the Crown with sovereignty … The radical title of the Crown is a technical and notional concept”. Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 by Cooke P at 23: “On the acquisition of the territory, whether by settlement, cession or annexation, the colonising power acquires a radical or underlying title which goes with sovereignty.” 57 Symonds at 390-91 per Chapman J: see §4.4(e)(iv) New Zealand jurisprudence. 58 Viscount Haldane delivered judgment in each case and adopted his Amodu Tijani interpretation of St Catherine's: Attorney-General of Quebec v Attorney-General of Canada at 406. 59 In R v Marshall; R v Bernard at [95] the Court is clear that it was not the Treaty of Paris, but land surrender treaties that transferred property rights to the Crown: “The Royal Proclamation was concluded in the context of discussions about how to administer and secure the territories acquired by Britain in the first Treaty of Paris in 1763 …Nova Scotia was clearly land marked for settlement by the Imperial policy … the recently concluded treaties with the Mi’kmaq of 1760-61 were designed to facilitate a “wave of European settlement”. In R v Sioui [1990] 1 SCR 1025 at 1055 the Court held the various treaties with the Indians reflected “’generous’ policy which …recognized that the Indians had certain ownership rights over their land, it [the Crown] sought to establish trade with them which would rise above the level of exploitation and give them a fair return.” 60 Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 (BCCA) at [18]; “This is sometimes called the “allodial”, “underlying”, or “radical” title of the Crown”, similarly Hughes v Governor etc Hudson's Bay (1998) 55 BCLR (3d) 377 (BCSC) at [24]. 61 Delgamuukw (1993) 104 DLR (4th) 470 (BCCA) at [794] “If aboriginal title is a burden on the radical title of the Sovereign, and if the radical title is acquired on the assertion of Sovereignty, then there is nothing in the taking of fee simple title by the Crown which would free either the radical title or the subordinate fee simple estate from the burden constituted by the aboriginal title.” Similarly Osoyoos Indian Band v Oliver (1999) 172 DLR (4th) (BCCA) 589 at [38].

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§5.3 The Consequences of radical title as imperium

As radical title is a right of imperium devoid of proprietary content, the holding of radical title, without more, cannot authorise the creation of proprietary interests in land. Such interests can be created only by legislation or out of the Crown’s allodial title. The common law right of native title burdens the Crown’s sovereign rights with respect to land, until that burden is removed.

(a) Radical title does not authorise the direct grant of estates

The Wik majority rejected the notion that radical title carried with it allodial title or a proprietary interest capable of expanding to allodial title. The Crown must first exercise sovereign power to acquire allodial title by purchase or legislative acquisition from native tile holders, before the Crown can grant an estate in fee simple out of that allodial title, as exemplified in the law and practice in New Zealand and Treaty Canada. 62

In Mabo and Wik , Brennan J did not assert that radical title “without more” was a proprietary interest. He saw radical title as a right to which allodial title would attach, but only once the “doctrine of tenure” had been otherwise invoked by a grant of an estate:

Once a decision was made to accept a doctrine of tenure as defining the rights of the grantee of the Crown, it was an essential postulate that the Crown have such a “title” that would invest it with the character of Paramount Lord in respect of the tenure created by grant, and would attract the incidents appropriate to that tenure, in respect of the grantee . The Crown was invested with the character of Paramount Lord in the colonies by attributing to it a title called a radical title.63 (emphasis added )

In this passage Brennan J does not posit radical title as the repository out of which the tenure is granted, and he is only going so far as to say that the doctrine of tenure defines the rights of the grantee as against the Crown. However, unlike the Wik majority, Brennan J saw the “doctrine of tenure”,

62 §2.2(b)(i) New Zealand: Extinguishment of Maori title and §2.2(b)(ii) Canada: Extinguishment of Aboriginal title. 63 Mabo at 48 per Brennan J referring to Amodu Tijani at pp 403, 404, 407; Nireaha Tamaki at 580. Per Deane and Gaudron JJ at 81: The “practical effect of the vesting of radical title in the Crown was merely to enable the English system of private ownership of estates held of the Crown to be observed in the Colony.” Per Toohey J at 212: “However, the effect of the fiction of past possession by the Crown is to secure the paramount lordship or radical title of the Crown which is necessary for the operation of feudal land law. And since fictions in law are only acknowledged “for some special purpose”(fn), that should be taken to be the extent of the fiction. So far as the system of tenures is concerned, on which English land law is based, no more is required.”

page 138 Chapter 5 – Radical title does not affect the capacity of native title holders to assert property rights as invoking the doctrine of allodial title and attaching allodial title to radical title, 64 on the grant of rights defined by statute.

As Brennan J noted, the doctrine of tenure defines the relationship between a grantor and grantee. It does not define the Crown’s title. 65 With respect to common law estates in land, the doctrine of tenure is invoked only when the Crown grants an interest in land out of its allodial title. The doctrine of tenure assumes that the Crown possesses an allodial title, not simply a radical title, or, in Brennan J’s terminology, a radical title “without more”. With respect to the Crown grant of statutory rights in land, the doctrine of tenure and the doctrine of estates may be relevant to explain the meaning of tenurial terms adopted in such grants, but only for the purpose of defining the relationship between grantor and grantee. One must look outside the doctrine of tenure to determine the extent to which the interest subject to grant amounts to a right against the whole world. With respect to common law estates, the in rem nature of the right granted is determined by common law principle: the holding of allodial title and of rights carved out of that allodial title under the Crown grant. 66 As allodial title is a right against the whole world, a grant carved out of this title may be a right against the whole world. With respect to the grant of an interest under legislation, the effect of the grant as against the whole world will depend upon the legislative intention, including whether the grant is intended to invade the rights of others. 67 As the doctrines of tenure and estates exist to define the relationship between grantor and grantee, axiomatically, they do not address the nature of interests in land not derived from Crown grant: allodial title, radical title and native title, or customary rights derived from immemorial use.

The Crown cannot transfer its radical title to subject, nor, can it create an interest in land otherwise than by the exercise of executive or legislative authority. Radical title has no "incidents" of transmission as such.

(b) Radical title fully respects native title as ownership and property

Native title burdens radical title, and therefore the existence of the Crown’s radical title affirms the property rights of native title holders against the Crown:

Indeed, by asserting his native title, the appellant impliedly asserts and relies on the radical title of the Crown as the basis of his own title of occupancy or possession. 68

64 §6.1(d)(v) Presumed acquisition of allodial title in the absence of other proprietors. 65 See footnote 52. 66 See §6.1(b) Crown must have interests in land before it can grant interests in land. 67 See §6.3(b) The Crown cannot by grant derogate from rights or privileges. 68 Nireaha Tamaki at 574.

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The rationale for the common law recognition of native title, the expression that “provides an explanation” 69 of the existence of native title, is that when the radical title of the Crown was acquired upon sovereignty, pre-existing “property” rights of indigenous peoples were not extinguished, but “burdened” the Crown's “radical title”, and that burden was recognised by the common law as native title. 70 The rationale of radical title is to explain the co-existence of Crown sovereignty, and the common law property right of native title, not the co-existence of proprietary interests in land. Radical title does not affect the capacity of native title holders to assert property rights, equivalent to ownership, against the Crown or the whole world. The “recognition of the radical title of the Crown is quite consistent with recognition of native title to land”. 71

(c) Native title as a burden on radical title and removal of that burden

The acquisition of sovereignty over the Australian Colonies was on the basis of full respect for pre-existing rights. If native title involved the burden of one sovereign right on another sovereign right, then traditional legal principles dictate that no issues of domestic law are involved. 72 However, native title is a common law right.

Before the acquisition of allodial title and any subsequent Crown grant, there can be no invocation of the Crown as “Paramount Lord”. Radical title as “a logical postulate required to support the doctrine of tenure [only arises] ( when the Crown has exercised its sovereign power to grant an interest in land)”. 73 (emphasis added) . Radical title is acquired on the acquisition of sovereignty by conquest, cession or settlement. It is acquired whether or not English law is introduced into the colonial lands. Radical title, as an aspect of imperium , is a recognition that the Crown possesses a "right", in truth a power or authority, over land within territorial limits, rather than a right to the land akin to a property right. Common law rights are “recognised as qualifying … sovereign rights, for purposes of municipal law”. 74 The property rights indigenous inhabitants held at the moment of the imperial acquisition of sovereignty constrained the sovereign title that the Crown acquired over colonial land.

Because sovereignty is held to carry with it a power to acquire or extinguish native title, it is not clear how this sovereign power is burdened

69 See text accompanying footnote 46. 70 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title. 71 Mabo at 50 per Brennan J. 72 Mabo at 31-32 per Brennan J, 81-82 per Deane and Gaudron JJ and 129-130 per Toohey J. 73 Mabo at 50 per Brennan J: see text accompanying footnote 41. 74 Yarmirr at [70] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: common law rights are “recognised as qualifying …sovereign rights, for purposes of municipal law”.

page 140 Chapter 5 – Radical title does not affect the capacity of native title holders to assert property rights by the existence of native title, but the word “burden” must be given some meaning. A burden indicates some form of limitation or restriction on the sovereign power of the Crown. The extent of that burden is determined by the common law, by the principle that common law rights are “recognised as qualifying … sovereign rights, for purposes of municipal law.” Amodu Tijani talked in terms of a burden significantly reducing an underlying right to a "pure" right, or to rights of "administrative" interference. St Catherine's , seeing native title as a personal (non-proprietary) right over land held under allodial title, spoke of native title as a "mere burden", implying that removal of the burden could be accomplished by a formal rather than a substantial act. The burden of native title has been seen as such that it could not be removed unless native title holders themselves consented (the approach adopted in Worcester v Georgia and Symonds and contemplated by Toohey J in Mabo 75 ), or it could be removed only by the doing of a sovereign act or the exercising of the sovereign power, the current position in Canadian, New Zealand and American jurisprudence, 76 and the approach endorsed in Mabo 77 .

In Australian jurisprudence, the removal of the burden is assisted by the conception of native title as "inherently fragile", and therefore a "mere burden", though one that remains until it is removed.

If native title is extinguished under domestic law, so that it no longer exists, it must cease to be a burden on radical title. This is not a linking of allodial title and radical title, as the same right to land, but a proposition that once native title has been extinguished under domestic law, it ceases to exist for all purposes. The common law right of native title ceases to burden the sovereign power of the Crown, under domestic law.

75 Mabo at 192-193 per Toohey J, citing both in Worcester v Georgia and Symonds. 76 §2.2(b) Extinguishment of native title. 77 Mabo at 110-110 per Deane and Gaudron JJ

page 141 Chapter 5 – Radical title does not affect the capacity of native title holders to assert property rights

§5.4 The parallel approach of US jurisprudence: fee title

While US jurisprudence does not use the term “radical title”, it has adopted the conception of “fee title” to describe the government right to land under US law. Indian title burdens both the fee title and any interest in land granted. Because US jurisprudence accepted Indian ownership of the land under domestic law, fee title was not allodial title. 78

In Johnson v McIntosh , Marshall CJ stated that “discovery gave exclusive title”, 79 and while his discussion of this “title” did not expressly distinguish between sovereign title to territory and a title under domestic law, the latter was implied, and later US jurisprudence accepted that the “title” acquired on discovery included a title under domestic law called “fee title”, 80 also described as “ultimate fee”, “seisin in fee” or simply “title” or “fee”. 81 Sovereignty carried with it the power to grant interests in land “subject only to the Indian right of occupancy.” 82 Such interests were granted out of the "seisin in fee". 83 The grantee received a contingent or executory title (“naked fee” 84 ).

However, Marshall CJ adopted a different approach in Worcester v Georgia, expressly denying that any property right vested in the discoverer: “these grants [Royal charters] asserted a title against Europeans [ie European nations] only, and were considered as blank paper so far as the rights of the natives were concerned. …[Discovery] was an exclusive principle which shut out the right of competition among those who had agreed to it; not

78 Tillamooks at 46 per Vinson CJ: "As against any but the sovereign, original Indian title was accorded the protection of complete ownership; but it was vulnerable to affirmative action by the sovereign.” Leavenworth, Lawrence, and Galveston Railroad Co v United States 92 US 733, 742 (1875): “As long ago as Cherokee Nation v Georgia, this court said that the Indians are acknowledged to have the unquestionable right to the lands they occupy, until it shall be extinguished by a voluntary cession to the government.” 79 Johnson v McIntosh at 574. 80 Oneida I at 667: “fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign-first the discovering European nation and later the original States and the United States.” 81 Mitchel v United States 34 US 711, 745-46 (1835) “ultimate fee”; “the ultimate reversion in fee”; Minter v Shirley 3 Miss Rep 376, 384 “the proprietors in fee”. 82 Johnson v McIntosh at 573: “While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.” 83 Johnson v McIntosh at 574, 592, 595-96, the phrase first appearing in Fletcher v Peck 10 US 87, 142-43 (1810). Leavenworth, Lawrence, and Galveston Railroad Co v United States 92 US 733, 742 (1875) “seisin in fee on the part of the State”. Walters MD, “The Morality of Aboriginal Law” (2006) 31 Queen's LJ 470 at 505: “Marshall … accepted that discovery gave the Crown the same proprietary title ("seisin in fee") in aboriginal lands.” 84 Beecher v Wetherby 95 US 517, 525 (1877): “The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians: that occupancy could only be interfered with or determined by the United States.”

page 142 Chapter 5 – Radical title does not affect the capacity of native title holders to assert property rights one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession.” 85 Worcester v Georgia held not only that the acquisition of sovereignty respected “pre-existing rights”, 86 but that it did not assert any interest in the land of the Indians. The charters “were well understood to convey the title which … they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The Crown could not be understood to grant what the Crown did not affect to claim”. 87 The jurisprudence of Worcester v Georgia was clear: as against the Indians, the Crown, and later the federal government, asserted imperium but not dominium .

Thus two approaches to the status of grants over Indian land developed. Firstly, without the prior extinguishment of Indian title, government grants would be void or voidable – the Worcester v Georgia approach, adopted in a long line of US jurisprudence. 88 Alternatively, the government had an interest in land (“seisin in fee”) burdened by the Indian right of occupation until Indian title was otherwise lawfully extinguished. When the government exercised its sovereign power to grant a “title”, all that was granted was an interest subject to Indian title – the Johnson v McIntosh approach. The grantee would receive a contingent or executory right to land (for Indian title might never be extinguished) devoid of all rights of possession or interference with Indian title. By granting this interest in land, government did not create an interest that reduced any of the rights held under the Indian title, but when Indian title was otherwise lawfully extinguished, “possession …attache[d] itself to the fee without further grant.” 89

As the federal government continued to grant interests in Indian land to non-Indians, fee title and Indian title were eventually reconciled by returning to a modified version of the approach in Johnson v McIntosh. The Supreme Court held that fee title was “encumbered” 90 by Indian title, and the sovereign power to grant contingent or executory interests remained subject to Indian title. To declare that the federal government actually holds “fee” to Indian lands, when it holds no rights of possession - the right of

85 Worcester v Georgia at 544-45. 86 Worcester v Georgia at 543: “It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered which annulled the pre-existing rights of its ancient possessors.” 87 Worcester v Georgia at 544-545 88 §2.2(b)(iii) No extinguishment by a grant of tenure. 89 United States v Cook 86 US 591, 593 (1873). 90 Clark v Smith 38 US 195, 201 (1839): “The ultimate fee (encumbered with the Indian right of occupancy) was in the crown previous to the Revolution.”

page 143 Chapter 5 – Radical title does not affect the capacity of native title holders to assert property rights exclusive possession being held by the Indians - is either an “incoherence” 91 if “fee” is to be treated as a term related to property, or the creation of a new doctrine. The accommodation of Indian title and fee title was interpreted by Cohen in this way:

either Indians had no title and no rights or the Federal land grants on which much of our economy rested were void. … this theoretical dilemma was neatly solved by Chief Justice Marshall's doctrine that the Federal Government and the Indians both had exclusive title to the same land at the same time. Thus a federal grant of Indian land would convey an interest, but this interest would not become a possessory interest until the possessory title of the Indians was terminated…The Indians were protected. The grantees were protected. 92

Accordingly, US jurisprudence holds that grants, made at a time when the government asserted sovereignty over Indian land, but Indian title had not been extinguished, were indeed lawful, yet contingent or executory until Indian title was otherwise extinguished by a clear and plain sovereign act. 93

The fee title of government is a right that does not affect the capacity of the holders of Indian title to assert ownership rights against the government, colonial settlers or the whole world. Fee title neither denies Indian ownership, nor asserts any possessory interest in Indian land. As such, fee title parallels the concept of radical title. Unlike radical title, the holding of fee title does authorise the direct grant of the naked fee, a non-possessory contingent interest in land, and so fee title more closely approximates a form of proprietary interest, as it enables the grant of a valuable right with respect to land, a right that can be bought and sold, and can expand to an estate in fee simple when Indian title is otherwise extinguished by sovereign act.

91 Blumm M, “Retracing the Discovery Doctrine: Aboriginal Title, Tribal Sovereignty, and Their Significance to Treaty-Making and Modern Natural Resources Policy in Indian Country” (2004) 28 Vermont L Rev 713 at 729. Contrast Asher v Whitlock (1865) LR 1 QB 1 at 6 per Mellor J: “possession is prima facie evidence of seisin in fee”. 92 Cohen Original Indian Title op cit at 48-49. 93 Strickland R (ed), Felix Cohen’s Handbook of Federal Indian Law (Charlottesville: The Mitchie Company 1982) at 489: “Naked fee title merely constitutes a reversionary interest that becomes possessory only if Congress clearly and plainly extinguishes the Indian title”.

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§5.5 Conclusion: radical title as an affirmation of native title as ownership and property

Native title burdens radical title, and therefore the existence of the Crown’s radical title affirms the property rights of native title holders against the Crown. The recognition of radical title is consistent with the recognition of native title.

The rationale of radical title is to explain the co-existence of Crown sovereignty, and the common law property right of native title. Common law rights burden sovereign rights, and native title burdens radical title. Until the burden of native title is removed, native title remains a burden on the sovereign rights of the Crown. These propositions are not statements about the relationship between proprietary interests in land. Radical title is not a proprietary interest in land.

While early Privy Council jurisprudence could be interpreted as holding that radical title was a proprietary interest, Wik confirmed that by holding radical title, the Crown does not have allodial title, or an interest in land capable of expanding to allodial title. Radical title does not authorise the direct grant of proprietary interests in land and it does not compete with native title. On the acquisition of sovereignty by settlement, the Crown has no proprietary interests in land. Radical title does not affect the capacity of native title holders to assert property rights, equivalent to ownership, against the Crown or the whole world, under domestic law.

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CHAPTER 6 - THE DENIAL OF FULL RESPECT IN THE EXTINGUISHMENT OF NATIVE TITLE ______

How then did Aboriginal communities lose their property rights to land? Australian and comparative jurisprudence hold that native title was extinguished by the sale or surrender of native title to the Crown, resulting in the Crown acquiring a perfect title to land out of which it could grant proprietary interests in land; or by enacting legislation evincing a clear and plain intention to extinguish native title. But Australian jurisprudence uniquely proposes that executive actions, done on the mistaken assumption that the Crown owned the land, also extinguished native title, denying full respect to native title as a property right under Australian law.

§6.1 The acquisition of allodial title

On sovereignty the Crown acquired radical title, but this title did not confer allodial title, or any present proprietary interest in land capable of expanding to allodial title. The Crown had to acquire allodial title. In New Zealand, Treaty Canada and the American Colonies/USA, the Crown or federal government acquired allodial title by agreement with native title owners, or, alternatively and exceptionally, pursuant to express legislative provision. Because the Crown in Australia has not acquired allodial title, it cannot grant interests in land out of allodial title. It cannot carve a lesser proprietary right out of an existing proprietary right. But if the Crown does not own the land, who does? Australian jurisprudence has declined to answer the ownership question because the answer is a fundamental inconvenience for the Australian law of extinguishment of native title to accommodate. Without a perfect title (a title perfect against native title holders), the Crown cannot grant a perfect title to its subjects.

§6.2 Because native title is a property right, a clear and plain intention to extinguish it is required

Native title is a property right and Australian law dictates that legislation is presumed not to interfere with property rights in the absence of a clear and plain intention to do so. The presumption has been applied in comparative jurisprudence to the protection of native title, and affirmed as relevant and applicable to native title in Australian jurisprudence. Yet the Australian law of extinguishment of native title ignores the presumption without explanation.

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§6.3 Extinguishment of native title in the absence of the acquisition of allodial title or a clear and plain intention: the Crown grant of rights to land

In the absence of the Crown acquiring ownership, or enacting legislation evincing a clear and plain intention to acquire ownership or extinguish native title, the Crown in the Australian Colonies granted interests in land over which native title subsisted, that is, interests in land over which the Crown had no allodial title; interests in land over which native title holders had the only proprietary rights recognized by Australian law.

Australian jurisprudence discounts reasoning that both the doctrine of the Crown as the source of title, and the doctrines of tenure and estates, exist only to explain how Crown grantees can assert the rights contained in Crown grants, against the Crown . Australian jurisprudence does not address the issue that one must go to a separate doctrine (the doctrine of allodial title) to explain why rights under a Crown grant can be asserted against the world .

As a right, native title is protected by appropriate legal remedies against physical interference. However, when it comes to interference by executive or legislative act, native title is treated differently to all other legal rights, and all other property rights. This difference of treatment is explained by labelling native title a “fragile” right, consistently with the conception of native title as a right subordinate to other common law rights. However, the description of native title as fragile is not the conclusion of a process of reasoning, but the a priori starting point for legal reasoning in which this fragile right cannot compete on an equal footing with rights under an estate in fee simple and other non-native title proprietary rights.

Grants under Crown lands legislation have created rights in land already owned by a person other than the Crown. In justifying how the rights under Crown grant prevail over inconsistent native title rights, or how native title can be extinguished in a way that other property rights cannot, Australian jurisprudence has compromised the protection of native title by pragmatic concerns which cannot be supported by established legal principle.

§6.4 Compensation for extinguishment of native title

Property rights can only be abrogated or taken without compensation if relevant legislation manifests a clear and plain intention to this effect. No such intention has been manifested in Australian legislation. Australian jurisprudence has created a new doctrine by bare assertion: the presumption of a right to compensation does not apply to native title.

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§6.1 The getting of allodial title

In Mabo Brennan J held that “absolute beneficial ownership can be acquired, if at all, by an exercise of the appropriate sovereign power”. 1 In accordance with colonial constitutional law, title to land could be acquired from indigenous inhabitants by two means: purchase or compulsory legislative acquisition. There was no purchase or surrender of native title in the Australian Colonies, and thus it is only pursuant to legislation “by which the Crown acquires full beneficial ownership of land previously subject to native title”. 2

(a) The Crown as source of title: a doctrine to justify the subject’s right of ownership, not the Crown’s right to land

Since before Blackstone’s time, persons in peaceful occupation of land have asserted ownership by proof of a documentary title to an estate in fee simple, transferred to them by the predecessor in title, or by asserting a right to succeed to an estate in fee simple (by adverse possession, presumption of lost grant or possessory title). Why it is appropriate to call the estate in fee simple “ownership” is explained by the doctrine of tenure and the doctrine of estates: fee simple ownership confers an exclusionary right to land. 3 The principle of the Crown as the source of title explains how the relevant predecessor in title came to have an estate in fee simple - because it is presumed to derive ultimately from a Crown grant. The Crown is the source of a grantee’s title . The doctrine of the Crown as source of title validates a present right to land by a chain of title stretching back, not to the acquisition of Crown allodial title, but to a fictional Crown grant out of allodial title.

One must turn to a different doctrine to discover the source of the Crown’s title. The king in England is presumed to have allodial title to land by legal fiction. 4 This fiction was not created for the purpose of vesting any meaningful proprietary interest in the Crown, but to provide the foundation for the chain of title of the present possessor of a documentary title. The fiction of allodial title was not part of the law introduced into the already inhabited Australian Colonies as it was contrary to: the principles of colonial constitutional law governing the acquisition of sovereignty; the

1 Mabo at 54 per Brennan J. 2 Wik at 85 per Brennan CJ (diss). 3 Pollock and Maitland op cit 232-233: “The person whom we may call its owner, the person who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep all others off it, holds the land of the king either mediately or immediately.” 4 §6.1 (iv) The fictions of allodial title and presumed Crown grant support the doctrine of tenure

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continuity doctrine of full respect for pre-existing rights as rights under Australian law, and the principle of equality before the law. 5 Australian law was modified to the extent necessary to fully respect native title. This meant that the Crown had to acquire allodial title.

Pre-Mabo Australian law held that the Crown acquired allodial title to land by the acquisition of sovereignty. Mabo repudiated this doctrine. But Mabo and subsequent jurisprudence affirmed the principle of the Crown as source of title. The doctrine of tenure and the doctrine of estates are part of the Australian law that recognises native title. 6 The Crown as source of title does not purport to explain why native title is a common law property right: the “doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant.” 7 Accordingly, the principle of the Crown as source of title, and the doctrines of tenure and estates, do not purport to explain radical title, allodial title or native title, or interests in land arising under common law custom.

The Crown as source of a grantee’s title rests on an assumption: before the Crown can grant interests in land it must have interests in land to grant. There must be a pre-existing foundation of Crown title, and without that foundation, the Crown cannot grant a greater interest in land than it has. If the Crown does not have a right in rem as against native title holders, it cannot grant a right in rem as against native title holders.

(i) The feudal context of title to land

At the time of the Norman Conquest, Edward the Confessor was the greatest private landowner in England, and William succeeded to his rights. However, these landholdings did not cover the whole of England. In England, the notion of property rights with respect to land emerged from various customary and feudal rights and obligations. 8 In early jurisprudence, the distinction between Crown ownership of land and the Crown’s sovereign rights with respect to subjects and land was not generally made, as any distinction between property and governmental power was only faintly perceived. 9 There is no doubt that after the Norman

5 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title. 6 Wik at 186 per Gummow J. 7 Mabo at 48-49 per Brennan J. 8 Vinogradoff P, Feudalism (Cambridge: CUP, 1924) Volume 3, 458-487. 9 Cohen M, “Property and Sovereignty” (1927) 13 Cornell Law Rev 8 at 16: “Ownership of the land and local political sovereignty were [in this period] inseparable”. Yarmirr at [51] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “As stated by Pollock and Maitland there was no thought which could separate the lands of the nation from the lands of the King…The distinction between private rights and governmental powers was faintly perceived, if perceived at all…Since the governmental power was in the King, he assumed, without objection, the right to do as he pleased with the land to which his governmental

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Conquest much private and public land became terra regis (land of the king), whether by surrender or confiscation, 10 and William proceeded to grant various rights over land in return for services and the acknowledgement of his rights of superiority. An immediate grantee ( mesne lord) would contract with a tenant to whom he would then grant further rights of tenure in return for services (subinfeudation). During the period when the distinction between sovereignty and property was blurred, land was part of a pyramid of relationships, mutual rights and obligations, with the king at the apex, and so discrete concepts of ownership or property were “out of place”. 11 Each immediate superior held a series of feudal privileges over those immediately below which effectively determined, not merely their rights to land, but their very destiny. 12 The idea of the Crown as source of property rights to land emerged in the 17 th century as feudalism faded. 13 Some feudal privileges, a “seigniory” of residual rights, remain as aspects of Crown prerogative or sovereignty over subjects, rather than as proprietary interests in land held under fee simple ownership.

(ii) Doctrine of tenure

The device used by the king to administer the rights in land that he granted to others ( dominium utile ) out of his allodial title ( plenum dominium) , but not to administer his own land ( demesne ), was tenure. In return for various goods or services, such as military service, the king would grant ( feu ) rights to his lords. The result of subinfeudation was a chain of tenurial rights and obligations, rather than simply a chain of “title”, with the king at the head.

power extended” (citations omitted). Similarly Maitland F, Domesday Book and Beyond (Cambridge: CUP, 1897) at 101, 170, 240. 10 Allen J, Inquiry into the rise and growth of the Royal Prerogative in England (London: Longman, 1849) at 152: The terra regis “was derived from a variety of sources. It consisted in part of land that happened at the time of the [Domesday] survey to be in the King's hands by escheats or forfeitures from his Norman followers. It was constituted in part of the lands of Saxon proprietors, which had been confiscated after the Conquest and had not been granted away to subjects, But it was chiefly composed of land that had been possessed by the Confessor in demesne.” 11 Wik at 186-87 per Gummow J: “The mediaeval notion of tenure was expressed by the proposition that all land was held directly or indirectly of the Crown. This involved relationships of reciprocal obligation between the respective parties at each level of the feudal structure, at the peak of which stood the sovereign. In an understanding of these relationships…”proprietary language is out of place” and the dominium of any particular dominus “was always a relative thing”. The concept of ownership by the Crown of all land is a modern one, and its adoption in legal theory may have been related to Imperial expansion in the seventeenth and eighteenth centuries, well after the decline of feudalism.” (footnotes omitted). 12 Cohen M, “Property and Sovereignty” op cit at 8-9: “the state long continued to be the prince's estate so that even in the 18th century the Prince of Hesse could sell his subjects as soldiers to the King of England.” 13 Wik at 186-87 per Gummow J cited footnote 11.

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(iii) Doctrine of estates

While the doctrine of tenure set out the rights with respect to land, the doctrine of estates set out the duration of those rights, and allowed for the creation of successive interests in land. The “doctrine of estates is a feudal concept in order to explain the interests of those who held from the Crown, not the ‘title’ of the Crown itself.” 14 At the time of acquisition of sovereignty over the Australian Colonies, the significant tenures were:

• The estate in fee simple, 15 an estate equated to “ownership”16 and usually referred to as “freehold title”; 17 • The fee tail estate, which could only be transferred to a lineal descendant, and if there were no lineal descendants upon the death of the estate holder, the land reverted to the mesne lord; • The life estate, granted only for the life of the estate holder; • The estate for term of years (including a term subject to conditions subsequent, or subject to executory limitations), such as leasehold estates;. • The tenancy at will (an estate that may be terminated immediately).

The estate in fee simple was granted at first by subinfeudation, and following the statute Quia Emptores 1290 (UK) which eliminated subinfeudation and allowed assignment of land without consent, by transfer. An estate in fee simple was originally inalienable, then alienable only inter vivos . As a result of the Statute of Wills 1540 (UK), it became alienable under a will. 18 In the event of a Crown grant of “an estate in fee simple”, 19 the relationship between the Crown and grantee is defined by the doctrine of tenure and estates, because the doctrines determine the only possible meaning the expression “an estate in fee simple” can have.

14 Wik at 128 per Toohey J. 15 The estate in fee simple (including fee simple absolute , and the fee simple determinable, fee simple conditional, and fee simple subject to an executory limitation). This is an estate that has the potential of lasting forever. Walsingham’s Case (1573) 2 Plowd 547 at 555: “The land itself is one thing and the estate in land is another thing: for an estate in the land is a time in the land, … he who hath a fee simple in the land has a time in the land without end.” 16 Pollock and Maitland op cit footnote 3. Commonwealth v New South Wales (1923) 33 CLR 1 per Isaacs J at 47. “A fee simple is the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law. It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination”. 17 Fejo at [2] per Gleeson CJ, Gaudron, McHugh Gummow, Hayne and Callinan JJ. 18 Statute of Wills 1540 (UK) allowed landowners to devise two-thirds of their real property by will. 19 The Statute of Tenures 1660 (UK) provided that all tenures were abolished except “free and common socage”. The grant of an estate without limitation is the grant of an estate in fee simple. Wik at 111 per Toohey J: “Socage is the only form of tenure that, for practical if not theoretical purposes, has existed in this country.” It is “a tenure of an estate in fee simple without incidents,” Similarly Native Title Act Case at 428 at footnote 175.

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The grant of an estate in fee simple is derivative, in that it is carved out of the greater allodial title. The grant of a leasehold estate is also derivative, in that it is carved out of either an allodial title or an estate in fee simple. Because allodial title is an in rem right, the grant of an unlimited estate, or an estate without a relevant limitation, carved out of the allodial title, can amount to an in rem right, because “this original title provides the foundation and source of all other titles.“ 20

(iv) The fictions of allodial title and presumed Crown grant support the doctrine of tenure

The 17 th century reality was that persons in exclusive possession of land were transferring rights of possession to others. It is a fundamental principle of English land law that no one can give what he or she does not have ( nemo dat quod non habet ). 21 The nemo dat principle left claims to title open to challenge on the basis that a subject’s title was defective, in the absence of proof of two things: a chain of actual grant stretching back to the first Crown grant, and the Crown’s allodial title. The above problems lead to the creation of the two universal fictions on which the land law of England came to rest: the Crown had allodial title, and the Crown granted a right to that land (presumed to be an estate in fee simple 22 ) to a predecessor in title at some time in the past:

[I]t became a fundamental maxim and necessary principle (though in reality a mere fiction) of our English tenures “that the king is the universal lord and original proprietor of all lands in his kingdom”; and that no man doth or can possess any part of it, but what has, mediately or immediately, been derived as a “gift from him, to be held upon feodal services”. 23

The Crown owned land and granted interests in land out of its allodial title. The fictions were “necessary” to validate the rights of the present holders of an estate in fee simple. The fictions were created, not to deprive subjects in occupation of land of a right to possession, but to validate that right to possession. The fictions affirmed the application of the nemo dat principle.

20 Wik at 172 per Gummow J. 21 Megarry and Wade op cit at 87. 22 Attorney-General (NSW) v Brown (1847) 1 Legge 312 at 318; Attorney-General (Ontario) v Mercer (1883) 8 App Cas 767 at 771-772; Chitty Prerogatives at 211. 23 2 Blackstone Commentaries at 51-52. Doe d Wilson v Terry (1849) 1 Legge 505 at 508-509: “In England ... the title of Sovereign to land is a fiction; or, where the Crown really owns land, the property is enjoyed as that of a subject is.”

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(v) After grant of an estate in fee simple the Crown retains no proprietary interests in land

Allodial title is the dominium aspect of the Crown’s rights ( imperium and dominium ) with respect to land. Once the Crown grants an estate in fee simple, it retains a “seigniory” of residual rights, 24 which relevantly include the rights of forfeiture for treason felony, 25 escheat for want of heirs, 26 and wardship.27 These rights do not amount to a proprietary interest with respect to the land itself. 28 If a fee simple exists, the Crown cannot grant a competing estate in fee simple out of its “seigniory” of residual rights. In Australian jurisprudence, escheat of an estate in fee simple is a transfer of the estate previously granted, back to the Crown, and subject to encumbrances created by the estate holder. It is not the creation of a new estate in fee simple, or expansion of a present proprietary interest in the Crown, nor a merger of the estate in fee simple with allodial title. 29

The grant of an unconditional estate in fee simple gives the grantee a vested property right. Once the Crown grants an estate in fee simple, it

24 The principal incidents of seigniory were an oath of fealty; a quit rent and the right of escheat. The lord was liable to forfeit these rights if he neglected to protect the tenant. Case of Tanistry (1608) 80 ER 517 at 524: If lands were not held of the Crown, the “king would lose all the benefit of his seigniory paramount in this land”, rights such as “wardship or escheat, or any manner of service, testifying his being the lord”. A quit rent, a charge on freehold, has been prohibited since Quia Emptores: Megarry and Wade op cit at 1068. 25 Forfeiture of property, including escheat by reason of felony, is annexed to the subject’s duties to the Crown, not to the land. Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (1998) 45 NSWLR 556 at 564: “lands escheated or were forfeited in circumstances in which, in the feudal system, the tenant repudiated his obligations of personal loyalty by treason or felony”. In Australia, escheats and forfeitures have been abolished by statute. 26 1 Coke on Littleton at 597-98 saw escheat to the Crown as a matter of prerogative: “For upon an office found, the king shall have it by his prerogative, of whomsoever the land is holden.” Coke sees the right of escheat in the mesne lord not as property, but as a right of an heir presumptive: “A man hath Seigniorie as heire .. and the Tenancie doth escheat” (652). Sandhurst Trustees Ltd op cit at 564: “Escheat relates only to real property, and another branch of the law, with different sources but similar results, relates to leasehold lands, which are treated as chattels and pass to the Crown as bona vacantia.” 27 Calvin’s Case (1609) 7 Co Rep 1, 5a, at 14a: “If a man hath a Ward by reason of a Seigniory, and is Outlawed, he forfeiteth the Wardship to the King: But if a man hath the Wardship of his own Son or Daughter, … he doth not forfeit this Wardship; for nature hath annexed it to the person of the Father”. 28 Sandhurst Trustees Ltd op cit at 563: “The rights conferred by fee simple ownership are so complete and the further rights of the Crown under its dominion or lordship are so vestigial that it is commonplace to speak of the Crown's ownership as a fee simple, even when emphasising its completeness.” Attorney-General of Ontario v Mercer (1883) 8 AC 767 (PC) at 778: “escheat … fell within the class of rights reserved to the Provinces as “royalties”. 29 Sandhurst Trustees Ltd op cit at 565: On escheat “the Crown is the owner of the fee simple estate” (at 565). “Escheat does not promote the interest escheated to something greater than it was …On the present facts there is not in my opinion any merger. The two interests of the Crown are of quite different kinds.” (at 566-67). Legislation such as the Property Law Act 1974 (Qld) s.21 is consistent with this analysis: “[a]ll tenures created by the Crown upon any grant in fee simple ... shall be taken to be in free and common socage without any incident of tenure for the benefit of the Crown.”

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cannot grant a competing estate in fee simple. At common law there is only one estate in fee simple to any piece of land: “there cannot be two fees- simple in the same land ... though the fee simple cannot perish, the title to that estate may be discontinued as to one person, and resumed by another.” 30 There can be no competing estates in fee simple. 31 Allodial title is a right of dominium , and the grant of an unconditional estate in fee simple removes all rights of dominium from the Crown. The Crown retains no rights of dominium , only rights of seignory. In this sense, once granted, an estate in fee simple is “solitary and indestructible”. 32 Allodial title is not a bottomless pit out of which, in legal theory, an indefinite number of estates in fee simple could be granted over the same land, in the absence of some other restraining common law principle. Once the Crown grants any proprietary interest in land, it cannot carve out another inconsistent proprietary interest from its allodial title, because the Crown no longer has a proprietary interest out of which such an estate can be granted.

(vi) Fictional grants of an estate in fee simple

The fiction of allodial title, and the presumption of a direct or derivative grant from the Crown to a predecessor in title, is the result of the need to validate the title of the present holder of an estate in fee simple. Because the Crown holds allodial title, no subject is allowed, in English law, to acquire a right of exclusive possession by personal effort. Thus squatters (persons in adverse possession), persons in long possession of land once known to be owned by another (presumptive grantees), and persons in unchallenged possession of land where prior ownership is unknown (possessory title holders), are all deemed to have succeeded to the estate in fee simple held by the former owner.

Adverse Possession

The fact of adverse possession destroys the presumption that the person in peaceful occupation of land has been granted a title derived from the Crown, because another possesses or is presumed to possess that title. The

30 Preston R, Estates (2ed, London: J & WT Clarke, 1820-27) Vol 1, at 423-424; similarly Butler C, Fearne's Contingent Remainders and Executory Devises (10ed, London: Saunders and Benning and Stevens & Norton, 1844), Vol 2 at 18: “the same hereditament cannot be the subject of two interests, each relating to the same period, and each comprising the entire legal seisin, property, or ownership for that period.” 31 Fletcher v Peck Johnson J (diss) at 147. “Since more than one fee simple could not exist in the same land at the same time, the absolute proprietorship of the Indians excluded the seisin in fee of another.” 32 Curwen N, “The Squatter's Interest at Common Law” (2000) Conveyancer and Property Lawyer 528 at 538.

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doctrine of adverse possession 33 results in a person possessing, at the end of a limitation period, an estate in fee simple. The Crown is not deemed to grant a new estate in fee simple at the end of the period. An encumbrance that binds a prior estate in fee simple binds the estate in fee simple acquired by adverse possession. 34 When the ability to regain title “is barred, the right and title of the real owner … are, in effect, transferred to the person, whose possession is a bar”.35 The Crown has no new estate to grant to a person in adverse possession, and while a person in adverse possession has a claim to possession which the common law protects as if it were an estate in fee simple, the person in adverse possession does not have the estate in fee simple until the expiration of the limitation period. 36

An alternative analysis is that the person in possession has the estate in fee simple, the disseisee losing seisin and acquiring a right of entry in its stead, 37 on the basis that a possessor acquires an estate in fee simple because the fullest estate known to the law is presumed until a lesser estate is proved. 38 In either case, there is only one estate in fee simple.

33 JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at [2]: the doctrine of adverse possession is “no doubt to be justified as avoiding protracted uncertainty [about] where the title to land lay.” 34 Re Nisbet and Potts' Contract [1905] 1 Ch 391 (reasoning endorsed by the Court of Appeal [1906] 1 Ch 386) held that a purchaser from a squatter took the estate subject to the burden of a restrictive covenant. Curwen op cit at 520 understands the case thus: “the estate claimed by the squatter is the existing fee simple”. 35 The Incorporated Society v Richards (1841) 1 Dru & War 258 at 289. Similarly Scott v Nixon (1843) 3 Dru & War 388 at 407 “has transferred the legal fee simple to the party in possession”. 36 Wheeler v Baldwin (1934) 52 CLR 609 at 633 per Dixon J quoting Maitland, The Mystery of Seisin “He who is seised, though he has no title to the seisin, can alienate the land …This may make seisin look very much like ownership… Nevertheless we err if we begin to think of seisin as ownership or any modification of ownership; after all it is but possession.” Dixon J stated earlier at 632: “The question whether the applicant has a good documentary title or a bad one is usually irrelevant to the acquisition of the possessory title…the caveator may succeed either by showing that the documentary title has been extinguished by his acquisition of a possessory title, or …by his impugning the validity of the applicant's documentary title.” 37 Mabo at 209 per Toohey J citing Pollock and Wright op cit at 93-94; reflecting the view of Lightwood, Possession of Land (London, 1894) at 274: “If there has been a disseisin of the true owner, his estate is turned to a right of entry, and the fee is already vested in the disseisor”. This is inconsistent with Ex parte Hamilton (1864) 3 SCR (NSW) (L) where it was decided that the person claiming to be owner of land under documentary title might apply to bring it under the Real Property Act, although another person was in possession adversely to him, and contrary to the approach in Wheeler v Baldwin (1934) 52 CLR 609 at 633 of Dixon J referring to Ex parte Hamilton and then Perry v Clissold: “if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title” Megarry and Wade op cit at 91-92 do talk of “two or more adverse estates”, but source the proposition to “better title based on ...prior possession”, and to seisin, which can be accommodated by Toohey J’s analysis of only one estate in fee simple existing at any one time. 38 Wheeler v Baldwin (1934) 52 CLR 609 at 632 per Dixon J

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Presumption of lost grant

Unlike adverse possession, the presumption of lost grant arose from a presumption that if a person was using another's land “time out of memory”, the use was permitted initially by a grant or reservation, now lost. The presumption of an earlier but now lost grant makes good a title in accordance with principle of the Crown as the source of title. 39

Possessory Title

Proof of occupation is proof of possession. A person in unexplained possession of land may be able to assert a better relative title to that land in situations where no other person can claim possession pursuant to a presumed or actual grant of tenure. Possession confers a “possessory title“ good against all the world except the true owner. 40 The doctrine of possessory title results in a person being presumed to hold a fictional Crown grant of an estate in fee simple, and in the event of that person bringing the land under the Torrens system, results in the actual grant of an estate in fee simple. 41

(vii) Conclusion

The Crown as source of title is a doctrine to justify the process by which a person in possession of land holds, or is presumed to hold, an estate in fee simple. The doctrines of tenure and estates explain the terms of that estate. The doctrine of Crown as source of title assumes the prior acquisition of allodial title by the Crown. The need to get allodial title, and actual getting of allodial title, are examined in the next two sections. The doctrines of tenure and estates dictate that there can only be one actual or presumed Crown grant of estate in fee simple at any one time. This is because the grant of an estate in fee simple removes or carves out fee simple ownership from the Crown’s present proprietary interest, and thereafter the Crown retains no meaningful proprietary interests in land under its allodial title, only rights of seigniory. But the doctrine of Crown as source of title and doctrines of tenure and estates can have no application to explain the rights in land of those not deriving their interests by Crown grant, namely the Crown, native title holders and customary right holders.

39 Doe d Devine v Wilson (1855) 10 Moo 502 at 523-528 in the Privy Council on appeal from New South Wales, referred to in Mabo by Toohey J at 212: “Furthermore, the fiction of a lost Crown grant answers the fiction of original Crown ownership and in so doing protects titleholders.”(footnotes omitted) Holdsworth, op cit Vol 7 at 343. 40 Delgamuukw at [149]: “Professor McNeil has convincingly argued that at common law, the fact of physical occupation is proof of possession at law, which in turn will ground title to the land.” See generally McNeil Common Law. 41 Possessory title is a basis to bring land under the Torrens system. Wheeler v Baldwin (1934) 52 CLR 609 at 631-633 per Dixon J.

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(b) Crown must have interests in land before it can grant interests in land

The assumption of the Crown as the source of a grantee’s rights to land is that the Crown has allodial title. in colonial constitutional jurisprudence, before alienation of native title to the Crown, the Crown possesses only radical title, a right devoid of proprietary content and a right burdened by native title. Radical title is therefore an imperfect title to land. The Crown has an imperfect root title that might be perfected by the subsequent sale or surrender of the land by its true owners, or the lawful extinguishment of native title. A doctrine that native title is alienable to the Crown affirms indigenous land ownership, 42 while forcing native title holders to sell their land only to the Crown, and therefore the doctrine enables the Crown to perfect its title to land. The doctrine that native title is inalienable other than to the Crown was not an afterthought in the development of native title jurisprudence in the USA and New Zealand. It was the very issue before the Courts in both Johnson v McIntosh and Symonds .

Pursuant to the nemo dat principle, if the seller has a defective title, a purchaser acquires only what the seller has, namely, a defective title. The nemo dat principle is not a maxim designed to flesh out the intention of parties in the case of ambiguities in a transaction. The principle is a fundamental basis for any system of laws on which respect for existing rights rests. The practical inconvenience of the principle has justified various presumptions, but not its common law abolition. 43 The law of remedies has created legal principles to resolve situations where the nemo dat principle adversely affects the rights of innocent third parties. 44 If the king attempts to grant an estate he does not have, the grant is void. 45 If, under indigenous law, native title holders “lease” their lands to the Crown, the lease is invalid if they have previously ceded the land to the Crown. 46

42 §4.4(e) Native title: alienation and ownership. 43 Reversal of the nemo dat principle, which necessitated the retrospective investigation of title, is, of course, the basic reason for the introduction of the Torrens system of land title by registration and payment of compensation to those suffering loss as a result. 44 Chippewas of Sarnia Band v Attorney General of Canada [2001] 1 CNLR 56 (Ont CA) at [292]-[295] accepted the nemo dat principle as applicable to land grant in question, but held it did not prevent the Court exercising its equitable jurisdiction with respect to the appropriate remedy: “As we have already explained, where the validity of a patent is impugned, established legal principles require that the interests of innocent third parties must be considered.” 45 Case of Alton Woods (1600) 1 Co R 40b at 43b-46b, at 44a: “if the King be tenant for life, and the King grants the land to another and his heirs, that grant is void, for the King taketh upon him to grant a greater estate than he lawfully can grant”. Similarly Alcock v Cooke (1829) 5 Bing 340 at 348 where a grant purported to grant an estate in possession which the King did not have, because there was an unexpired lease over the same land. These cases (discussed in McNeil K, “Extinguishment of Aboriginal Title in Canada: Treaties, Legislation, and Judicial Discretion” (2002) 33 Ottawa L Rev 301 at 333-34) do concern grants out of allodial title, but the grant of derivative rights. 46 Daera Guba Chapter 5 footnote 270.

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(i) Australian jurisprudence: the principle that the Crown must have title before grant is affirmed

In Attorney General v Brown the Supreme Court of New South Wales stated:

that the waste lands of this Colony are, and ever have been, from the time of its first settlement in 1788, in the Crown … they are … as his or her property … and may now be effectually granted to subjects of the Crown. 47

As explained by Gummow J in Wik , this passage was a proposition that the Crown must have title, before it can grant title:

Stephen CJ had emphasised in Attorney General v Brown that, at the time of making a grant of land to a subject, the Crown must be presumed to have a title to that land and that this original title provides the foundation and source of all other titles. 48

Brennan J stated in Mabo :

It is implicit in the relationship of tenure that both lord and tenant have an interest in the land: “The King had dominium directum , the subject dominium utile . Absent a “ dominium directum ” in the Crown, there would be no foundation for a tenure arising on the making of a grant of land. 49 (footnotes omitted)

The statement of Brennan J makes three points. Firstly, the Crown can only grant an interest in land if it has an equal or greater interest in land, and Brennan J considered that it was assumed by the doctrine of tenure (“implicit”) that the Crown did have the necessary interest in land. The legal question is what is the effect of this assumption. Secondly, tenure is a “relationship” between the grantor and grantee. Finally, the statement sets out Brennan J’s Mabo /Wik view of why native title is extinguished by the grant of an estate in fee simple. The reason is that because the Crown has granted an estate, the doctrine of tenure arises out of that grant, and dictates (provides the “foundation”) that dominium directum vests in the Crown, and this proprietary interest, not the estate immediately granted of it, extinguishes native title.

47 Attorney General v Brown (1847) 1 Legge 312 at 316. 48 Wik at 172. 49 Mabo at 46 per Brennan J. In Brennan J’s quotation, plenum dominium = dominium directum. The Crown does not retain any proprietary interest in land after grant of an estate in fee simple: see §6.1(a)(v) After grant of an estate in fee simple the Crown retains no proprietary interests in land

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However, addressing Brennan J’s first point, under feudal theory the doctrine of tenure is not the source of the Crown’s proprietary interests in land, the doctrine of allodial title is. Proprietary interests are carved out of the Crown’s allodial title (presumed to exist as a matter of law in England, but not so presumed in colonial jurisprudence). Until the Crown exercises its sovereign power to acquire interests in land, as against native title holders, neither the Crown nor persons deriving a title from the Crown have such interests. With respect to the second point, it was argued in the preceding section that the very purpose of the doctrines of tenure and estates is to define the relationship between the Crown and grantee. With respect to Brennan J’s final point, his approach to the extinguishment of native title was rejected by the Wik majority and subsequent jurisprudence.

(ii) Udal law: the Crown must have title before grant

The proposition that the Crown must possess an interest in land before it can grant an interest in land is illustrated by how the doctrine of tenure interacts with Udal law in the mixed legal system of Scotland.

Udal law is the basis of land law in Orkney and Shetland, though it has been overlaid by legislation based on common law notions of tenure. 50 Smith v Lerwick Harbour Trustees 51 concerned competing feudal and udal titles. Udal title is an allodial title to land. It is relevant primarily with respect to interests in the foreshore. It is common for udal titles to extend “from the lowest of the ebb to the highest of the hill”52 and therefore to include the foreshore. At common law, the Crown has property in the foreshore, subject to certain public rights. 53 In Smith v Lerwick Harbour Trustees the pursuer held a udal title which included the foreshore. The Crown had granted a foreshore title to the defenders, in exercise of the Crown’s sovereignty ( jus coronae) . The Lord Ordinary stated that the existence of udal title meant that all Crown property rights were excluded from the foreshore, but the Crown's prerogative rights were not. While this

50 Dobey WJ, op cit at 32: “Udal Law came to Orkney and Shetland with the Norse emigrants who began to colonise the islands in the seventh or eighth century …Norway ceded the Hebrides to Scotland by the Treaty of Perth in 1266.” 51 Smith v Lerwick Harbour Trustees (1903) 5 F 680. 52 Smith v Lerwick Harbour Trustees (1903) 5 F 680 at per Lord Kinnear at 693. 53 The Crown has full ownership of the foreshore, and can grant property rights in the foreshore to a third party: Shetland Salmon Farmers Assoc v Clyde Navigation Trs 1991 SLT 166. But the Crown cannot alienate its property rights in a way that prejudices the public's rights of use:. Lord Advocate v Clyde Navigation Trs (1891) 19 R 174 at 182: “It is true, of course, that the powers of proprietary right [in the Crown] are modified by certain public uses which the community are entitled to enjoy”. Lord Advocate v Wemyss (1899) 2 F 1 at 8- 9: “I do not think that the Crown could, without the sanction of the Legislature, lawfully convey any right or interest in it [the solum] which, if exercised by the grantee, might … in any way interfere with the uses of navigation, or with any right in the public”.

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therefore permitted a grant of a right, 54 as the pursuer had a udal title, the right granted under Crown sovereignty to the defenders did not prevail against udal title holders. 55 In the Inner House, Lord Kinnear distinguished between the Crown’s interest as protector of public rights over the foreshore and the Crown's property rights in the foreshore. As regards the public rights, the Crown’s sovereignty remained. In relation to the Crown's property rights, he took the view that:

If the solum [of the Shetland Isles] as a whole is not originally the property of the Crown, I know of no authority, and can see no reason, for holding that part of it which is called the foreshore is Crown property. 56

Accordingly, where a udal title existed, the Crown did not have (and never had) any proprietary rights. The fiction of allodial title was displaced. The Crown could not grant an interest in the land because it had none to grant .

(iii) New Zealand jurisprudence: Crown must have title before grant

New Zealand jurisprudence, excluding the Wi Parata years, also holds that the Crown must have title before it grants interests in land that are valid against the Maori title holders. Sovereignty gave the Crown no rights of property, it gave the Crown only a pre-emptive right to acquire property from the Maori and Maori “dominion”, a right equated to an estate in fee simple, was modified only to the extent necessary to accommodate the right of pre-emption. 57 As a matter of constitutional law, the Crown could not waive its right of pre-emption by proclamation.58 As the only right asserted against Maori was the right of pre-emption, it followed that, the Crown having no proprietary interests in the land, it could grant interests in land only after prior purchase of the land from the Maori. 59 However,

54 Smith v Lerwick Harbour Trustees where Lord Kincairney at 684 refers to grant of “a right to lands in Orkney and Shetland to which no other right could be produced”. 55 Smith v Lerwick Harbour Trustees per Lord Kincairney at 684. 56 Smith v Lerwick Harbour Trustees per Lord Kinnear at 692. 57 Symonds at 391: “Anciently, it seems to have been assumed, that notwithstanding the rights of the Native race, and of course subject to such rights, the Crown, as against its own subjects, had the full and absolute dominion over the soil, as a necessary consequence of territorial jurisdiction. Strictly speaking, this is perhaps deducible from the principle of our law. The assertion of the Queen's preemptive right supposes only a modified dominion as residing in the Natives. But it is also a principle of our law that the freehold never can be in abeyance; hence the full recognition of the modified title of the Natives, and its most careful protection, is not theoretically inconsistent with the Queen's seisin in fee as against her European subjects.” 58 Symonds at 392: “I am of opinion that it is not a fit subject of waiver either generally by Proclamation, or specially by such a certificate as Mr McIntosh holds.” 59 Symonds at 392: “But for more than a century certainly, neither in the British American colonies nor subsequently in the United States has it been the practice to permit any patent to pass the public seal of the Colony of (sic) [or] States previous to the extinguishment of the Native title…To part with the Crown's interest during the existence of the Native title,

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notwithstanding these principles, settlers, “European subjects”, could not challenge the validity of any Crown grant because, as against them, the Crown was the source of title. 60

(iv) Canadian jurisprudence: Crown must have title before grant

Similarly in Chippewas of Sarnia 61 the Ontario Court of Appeal held that a grant without prior surrender of native title was voidable. The facts were these. In 1839, Malcolm Cameron purported to purchase lands by private sale from three Chiefs of the Chippewas. There was no formal surrender of the lands to the Crown. As private sale was prohibited by the Royal Proclamation , the trial judge held that the transaction was “void and illegal ab initio ”. 62 As there was no valid surrender of the lands to the Crown, the Crown had no authority to patent the lands in 1853 to Cameron. The purported patent was “void ab initio and of no force and effect”. 63 The Court of Appeal held the patent to be voidable:

In our view, the patent was valid on its face and continues to have legal effect unless and until a court decides to exercise its discretion to set it aside. 64

The appropriate remedy was damages against the Crown. 65 However, the Court also said:

we accept the proposition that aboriginal title could be lost only by surrender to the Crown, and that a surrender required a voluntary, informed, communal decision to give up the land. 66

leaving it to the grantee to acquire that title, is obviously fraught with evil to both races, and with great inconvenience and perplexity to the colonial Governments.” 60 Symonds at 391 see footnote 57. 61 Chippewas of Sarnia Band v Attorney General of Canada [2001] 1 CNLR 56 (Ont CA), leave to appeal denied [2001] 4 CNLR iv (Supreme Court). 62 Chippewas of Sarnia Band at [10]. 63 Chippewas of Sarnia Band at [11]. 64 Chippewas of Sarnia Band at [24]. And at [261]: “He held that the Cameron patent was “void”. A “void” patent is said to be one that has no legal effect whatsoever, while a “voidable” patent is one that does have effect unless and until it is set aside. Whatever its merits for other purposes, the language of “void” and “voidable” seems to us to be not a particularly apt or helpful analytic tool in the present context. From a remedial perspective, the inherent discretion of the court is always in play. …the term “void” is “meaningless in any absolute sense. Its meaning is relative, depending upon the court’s willingness to grant relief in any particular situation.” … “a void act is in effect a valid act if the court will not grant relief against it.” … Accordingly, for practical purposes, a patent that suffers from a defect that renders it subject to attack will continue to exist and to have legal effect unless and until a court decides to set it aside.” 65 Chippewas of Sarnia Band at [311] see §6.4 Compensation for extinguishment of native title. 66 Chippewas of Sarnia Band at [199].

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(v) US jurisprudence distinguished

Prior to the extinguishment of Indian title, US jurisprudence holds that the Crown/government possesses a fee title out of which it grants an executory and contingent interest, “naked fee”, which confers no possessory interest on the grantee, until Indian title is otherwise extinguished. 67

(c) Acquisition of allodial title

(i) Acquisition of allodial title in England

Despite wholesale confiscations following the Norman Conquest, existing landholders were obliged to register ownership of land in the Domesday Book, and many landholders retained the pre-existing title to their land. 68 Two main bases on which a doctrine of allodial ownership of all land in England by the Crown (or king as a natural person) might rest have been proposed: ownership by actual possession of the land (no longer considered plausible) 69 and ownership by legal fiction. 70 By Blackstone’s time, jurists considered the rule that the Crown owned all land in England was a legal fiction.71

(ii) Acquisition of allodial title in the Australian Colonies

Mabo rejected the doctrine of absolute Crown ownership by acquisition of sovereignty. Allodial title is not presumed, but is acquired by the actual exercise of sovereign power. Brennan J rejected the justifications for the acquisition of allodial title in previous Australian cases: 72

• land in a colony is “the patrimony of the nation” 73 and the Crown acquired ownership on behalf of the nation; • ownership was part of the “Crown prerogative”; 74

67 §5.4 US jurisprudence distinguished: Indian title and fee title 68 Freeman EA, William the Conqueror (London: Macmillan and Co, 1913) at Chapter 8. Maitland Domesday Book op cit at 153-154 notes that a number of landholders held title in “alodium”; similarly Vinogradoff at 91 69 Coke Littleton 65a. Coke argued that the king had actual possession of all land at some time in the past, but this argument is not plausible: McNeil Common Law 82-83. 70 McNeil Common Law 81-83; Lester op at 1191-1243 71 §6.1(a)(iv) The fictions of allodial title and presumed Crown grant support the doctrine of tenure. 72 Mabo at 25 to 43. 73 Mabo at 52-53. 74 Mabo at 53-54. Seas and Submerged Lands Case at 438-439 per Stephen J: “That originally the waste lands in the colonies were owned by the British Crown is not in doubt. Such ownership may perhaps be regarded as springing from a prerogative right, proprietary in nature”. New Zealand jurisprudence has expressly rejected this argument: Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321 (CA) at 352 per Cooper J: “Customary lands owned by Natives which have not been ceded to His Majesty or acquired from the Native

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• the land was legally “desert and uninhabited” and therefore “there would be no other proprietor” 75 (emphasis in original).

The acquisition of ownership by acquisition of sovereignty argument was the result of a confusion between imperium and dominium .76 Similarly Deane and Gaudron JJ held that the Australian cases supporting the doctrine of absolute Crown ownership were wrong. 77

(iii) Acquisition of allodial title by exercise of prerogative power

Governor Phillip’s commission, and his instructions, like those of most colonial governors, conferred a power to make direct land grants. But grants of dominium could only be made if governors possessed something to grant, and a mistaken assumption of Crown allodial title did not thereby vest allodial title in the Crown. There is no known occurrence of the Crown vesting allodial title in itself in the Australian Colonies pursuant to an exercise of prerogative power.

(iv) Acquisition of allodial title by purchase

In Canada, New Zealand and the American Colonies/USA, the Crown or federal government purchased the land from Aboriginal landholders. 78 The assumption that the Crown would end up with an allodial title to land, a perfect title, by reason of the indigenous sale or surrender of native title was the very reason why a doctrine of native title as alienable only to the Crown existed. The doctrine was more than a mere right of pre-emption. It was effectively a doctrine of forced sale of land to the Crown. 79

In comparative jurisprudence, native title was purchased by the Crown under domestic law. Did this mean that the Crown was purchasing an allodial title? Comparative jurisprudence has approached the notion of ownership at a level of conceptualisation that does not expressly answer this question, beyond affirming the transfer of "ownership". In US jurisprudence, the proposition that sovereignty gave only “the exclusive right of purchasing such lands as the natives were willing to sell” 80 is the

owners on behalf of His Majesty cannot, in my opinion, be said to be land vested in His Majesty by right of his prerogative.” 75 Mabo at 48. 76 Mabo at 43-52. 77 Mabo at 102-104. Deane and Gaudron JJ stated at 103: “… in each of those four cases, the reasoning supporting one or both of the broad propositions that New South Wales had been unoccupied for practical purposes and that the unqualified legal and beneficial ownership of all land in the Colony had vested in the Crown, consists of little more than bare assertion.” 78 §2.2(b) Extinguishment of native title 79 §4.4(e) Native title as inalienable other than to the Crown. 80 Worcester v Georgia at 544-545. These Charters are set out and discussed in Lester at 370- 428.

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language of ownership and its transfer. 81 Similarly, New Zealand and Canadian jurisprudence talk of the sale or surrender of native title, resulting in the Crown having ownership:

From the beginning of Crown colony government, it was accepted that the entire country was owned by Maori according to their customs and that until sold land continued to belong to them. 82

(v) Presumed acquisition of allodial title in the absence of other proprietors

In Mabo Brennan J 83 and Deane and Gaudron JJ 84 held that if native title and therefore native title holders did not exist, the Crown’s radical title and the “beneficial estate in land” would vest together and “undivided” in the Crown. The idea of an allodial title vesting by sovereign assumption (in the absence of express cession as in Amodu Tijani ), is the very proposition that Roberts-Wray described as “incredible”. 85 Brennan J rested the proposition on a “principle” that the Crown owns land in the absence of “other proprietors”, 86 but on the facts applicable to the Australian Colonies, that principle was not invoked. However, the existence of such a principle is not supported by the jurisprudence.

In colonial jurisprudence, the Crown must in every case prove its title, and cannot claim a better title by putting others to proof of their title, a proposition illustrated by In Re Southern Rhodesia,87 in which the Privy Council held that Crown title to land is not presumed. By Orders in Council, the Crown had granted “administrative control” over land in Southern Rhodesia to the British South Africa Company which held that administrative control under a conquered native sovereign who retained “sovereignty, though his territory was under British influence”. 88 The issue

81 See speech of Jefferson cited Chapter 2 footnote xx. 82 Ngati Apa at [37] per Elias CJ. Similarly R v McCormick (1859) 18 Upper Canada Queen's Bench Reports 131, 133: “[Until] acquired by purchase from the aboriginal tribe to which it had belonged [land was not] available for disposition by the crown government to third parties.” 83 Mabo at 48: “If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen CJ in Attorney-General v Brown: there would be no other proprietor.” 84 Mabo at 86 per Deane and Gaudron JJ: “As has been seen, it must be accepted as settled law that … the radical title to all land in the new Colony vested in the Crown. If there were lands within the Colony in relation to which no pre-existing native interest existed, the radical title of the Crown carried with it a full and unfettered proprietary estate. Put differently, the radical title and the legal and beneficial estate were undivided and vested in the Crown.” 85 Roberts-Wray op cit at 631. 86 Mabo at 48 and 60 per Brennan J relying on Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 439 per Isaacs J: “It has always been a fixed principle of English law that the Crown is the proprietor of all land for which no subject can show title”. 87 [1919] AC 211. 88 [1919] AC at 214.

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before the Privy Council was who owned certain lands. The Crown sought a declaration of its own rights, rather than a mere holding that the Company’s rights did not prevail against the Crown. The case raised “positive questions as to ownership”. 89 Did the Orders in Council vest ownership in the Company? If not, did the Crown own the land, or were the owners the successors to those who owned the land under the lex loci before conquest? The Privy Council rejected the Company’s argument that it owned the lands. While the Company had purported to dispose of land, “the uncontested disposal of lands, as upon a grant for value, may be indicative of ownership in the grantor or it may not”. 90 In refusing to make a declaration in favour of the Crown, Lord Sumner said:

The rights of the Crown . . . are equally matters of proof. …. if the lands are not shown to belong to any private owner, the practical conclusion would seem to be that they are the Crown’s, but here too, unless it can be made to appear how and why they are the Crown’s, the question of ownership cannot properly be answered in the Crown’s favour. 91

It was also argued that perhaps the “natives” might be the owners, but no ruling was made:

As the argument stood it was really matter of conjecture to say what the rights of the original “natives” were and who the present “natives” are, who claim to be their successors in those rights. 92

Similarly in Bristow v Cormican the House of Lords on appeal from Ireland, rejected the proposition that the Crown is entitled by prerogative to land to which no one else can show title, 93 and in Tamihana Korokai v Solicitor-

89 [1919] AC at 230. 90 [1919] AC at 244. 91 [1919] AC at 243. 92 [1919] AC at 233. 93 Bristow v Cormican (1878) 3 App Cas 641 at 667 per Lord Blackburn: there is no “authority for saying that, by the prerogative, the Crown was entitled to all lands to which no one else can shew a title … this is so far from being the case”; similarly at 658 per Lord Hatherley: “Clearly no one has a right to say that it became vested in the Crown because it belonged to nobody else”. At 655-56 Lord Cairns LC said: it was “incumbent on the Appellants, in order to make available their documentary title, to give some evidence of the ownership or possession of the Crown at the beginning of that title”. The case involved an alleged trespass on lands covered by the waters of Lough Neagh, and as evidence of title, the appellants produced a grant from Charles II dated 1660. The court held that a Crown grant, without evidence that the land had been the Crown's at the time of the grant, was not evidence of ownership. at 667. at 667. The title of the Crown must be found by inquest of office: 3 Blackstone Commentaries at 258: “an inquiry made by the king’s officer, his sheriff, coroner, or escheator, virtute officii, or by writ sent to them for that purpose, or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods or chattels.”

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General 94 the New Zealand Court of Appeal held that for the Crown to claim title to any land, it had to show a formal act of acquisition. 95 The Crown must prove its title to land. 96 If “the Crown seeks to recover property and to oust the present possessors, it must make out its case just like any other litigant”.97

(vi) Acquisition of allodial title by legislation

Legislation can vest allodial title in the Crown. This can occur because it is clearly and plainly expressed to occur, or on the basis that the vesting of allodial title in the Crown, free of native title, is a necessary implication. The Queensland Coast Islands Declaratory Act 1985 (Qld) which “vested [title to land] in the Crown in right of Queensland freed from all other rights” clearly vested a title freed from native title. 98 In New Zealand, legislation was drafted on the basis that land only vested in the Crown on sale by Maori, and only became subject to the disposing power of the Crown after such sale. 99

Prior to Mabo , Crown lands legislation simply assumed Crown allodial title, rather than vesting title in the Crown. However, the inquiry into an intention of pre-Mabo legislation to deal with allodial title, or with native title is:

somewhat artificial when it is recalled that …the courts [treated] … the country as if it were “desert uninhabited”. Bearing this perception in mind, the true inference to be drawn - if not the certain fact - is that

94 Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321 (CA). 95 The case involved conflicting claims of Māori and the Crown to own Lake Rotorua. The Crown claimed it owned the bed by prerogative right, and denied any Māori title, saying that title had been abandoned, if it ever existed. The Court of Appeal did not decide ownership, but affirmed the right of the Native Land Court to investigate title. It rejected the Crown's assertion of ownership, saying that the Crown had to prove its title or produce a valid Proclamation vesting the land in the Crown, not simply assert title. A negotiated settlement was reached between the Crown and Te Arawa before the Land Court could make a finding, and legislation enacted in 1922, under which the beds of most of the Lakes vested in the Crown free of any Māori customary title, in return for annual compensation by the Crown, with the sole right to fish for indigenous fish reserved for Māori. 96 Nireaha Tamaki at 576: “ “In a constitutional country the assertion of title by the Attorney- General in a Court of Justice can be treated as pleading only, and requires to be supported by evidence.” 97 Wallis v Solicitor-General for New Zealand [1903] AC 173 at 188. 98 See legislation and discussion in §3.3(b) Denial of native title as a denial of the right to enjoy property contrary to the guarantee of equality before the law in the RDA . 99 Symonds at 394 Martin CJ said of the Land Claims Ordinance 1841 (NZ) that “everywhere assumed that where the native owners have fairly and freely parted with their lands the same at once vest in the Crown, and become subject wholly to the disposing power of the Crown”. Ngati Apa at [38] per Elias CJ: “The land became subject to the disposing power of the Crown by Crown grant only once customary ownership had been lawfully extinguished”.

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the Aborigines and their title to land were ignored …Accordingly, as Macfarlane JA observed ...:

One should assume that the object [of legislation] was to achieve the desired result with as little disruption as possible, and without affecting accrued rights and existing status any more than was necessary .100 (emphasis added)

Accordingly, the Native Title Act Case held that the need to provide land for settlers did not require legislation providing for the management of Crown lands to be interpreted as extinguishing native title. In Mabo the majority stated that general legislation permitting the management of Crown lands was not be taken as extinguishing native title, 101 and therefore did not effect a vesting of allodial title in the Crown. Canadian jurisprudence is similar. 102

(d) Avoiding the ownership debate in Australia

Australian case-law and legislation has not established that the Crown vested absolute beneficial ownership, allodial title, a plenum dominium or any form of title or property right with respect to land, in itself. Wik did not determine Crown ownership, but Wik implied that later jurisprudence would explain how the Crown acquired allodial title:

Absolute and beneficial Crown ownership, a plenum dominium , was established not by the acquisition of radical title but by subsequent exercise of the authority of the Crown. 103

Brennan J in Mabo is even clearer:

100 Native Title Act Case at 431-33 per Mason CJ, Brennan, Deane, Gaudron, Toohey, McHugh JJ 101 Mabo at 111 per Deane and Gaudron JJ: “general waste lands (or Crown lands) legislation is not to be construed, in the absence of clear and unambiguous words, as intended to apply in a way which will extinguish or diminish rights under common law native title.” Similarly Mabo at 196 per Toohey J: “It follows that traditional title may not be extinguished by legislation that does no more than provide in general terms for the alienation of the waste lands of the colony or Crown land.” Brennan J at 65-67 held that although Crown lands legislation was founded on the assumption of absolute Crown ownership, such legislation did not extinguish native title: Aboriginal people “were dispossessed by the Crown’s exercise of its sovereign power”. 102 Canadian jurisprudence holds that Crown lands legislation does not effect a vesting of a title in the Crown that extinguished native title. In Calder legislation and various proclamations “declared that all lands in British Columbia and all mines and minerals thereunder belonged to the Crown in fee.” Judson J at 167 held that native title been extinguished as a result, however the contrary view of Hall J (diss) at 208 was confirmed in Delgamuukw (1993) 104 DLR (4th) 470, 525-31 per Macfarlane JA, at 675 per Lambert JA. 103 Wik at 186 per Gummow J; similarly at 127 per Toohey J: “radical title does not of itself carry beneficial ownership”; at 234-35 per Kirby J: “Something more is needed to remove that burden, and to extinguish the native title, than a mere exercise by the Crown of rights of dominium”.

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absolute beneficial ownership can be acquired, if at all, by an exercise of the appropriate sovereign power. 104

Fejo responded to the issue of Crown ownership by saying that, while Australian law may have to address the issue of Crown ownership with respect to the grant of a lease, it did not have to address the issue when the Crown granted an estate in fee simple, because “[n]ative title is extinguished by a grant in fee simple”: 105

Similarly, although reference was made in argument to questions of plenum dominium they are not questions that arise in this case. The question in this case concerns the 1882 grant [of an estate in fee simple], not any later lease of the land. The Crown having granted no lease of the land in 1882, there is no question of the Crown becoming entitled to both ownership and possession of the land upon the lease coming to an end. The rights granted here were inconsistent with native title. The questions about leasehold interests that were considered in Wik do not arise. 106

As native title was wholly extinguished, Fejo held that Crown ownership did not have to be investigated. In Ward , one issue before the court was the effect of various statutory leases on native title, and the High Court held that, even with respect to partial extinguishment of native title, Crown ownership still did not have to be explained:

Yet there may be cases where the executive, pursuant to statutory authority, takes full title or plenum dominium to land and it is clear that this would extinguish native title. Likewise, it may be that the assertion or exercise of some rights in relation to land which fall short of the taking of full title to it , may have some relevant effect on native title rights and interests. 107 (emphasis added)

In this passage, it is the legislative taking of “full title” that extinguishes native title, but actions that fall short of the taking of full title may have an “effect” on native title. It is with this passage in Ward , that Australian jurisprudence has ended any attempt to explain Crown title to land. 108 Any explanation of the extinguishment of native title rests on means other than the Crown acquisition of ownership of land, and thus the Crown title to land remains incomplete and imperfect.

104 Mabo at 54 per Brennan J. 105 Fejo at [48] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 106 Fejo at [55] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 107 Ward at [151] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 108 However in Ward Aboriginal ownership of land was also left open: see Chapter 4 footnote 18.

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In responding to the Wik peoples argument that the Crown should not be taken, upon the granting of a limited estate in land to thereby manifest an intention to appropriate to itself full title, Brennan CJ stated:

If the holders of native title were recognised as the owners of an estate in remainder in the land …would the holders of native title have become liable to pay for the improvements to the land effected during the expired lease? ..These questions indicate some of the problems that arise once the fundamental doctrines that govern the title to land granted by the Crown under the 1910 Act are departed from. In my opinion, the common law could not recognise native title once the Crown alienated a freehold or leasehold estate under that Act. 109

If an Aboriginal community had granted a term lease to a pastoralist out of its common law native title, then it would have the rights of the owners of the title out of which the lease was granted, a proposition accepted in New Zealand. 110 However, Brennan J’s hypothetical question fails to separate the relevant issues. If the Crown grants a leasehold interest over land that the Crown does not own (does not have allodial title to), then there are three separate issues: what is the relationship between the Crown and its grantee, what is the relationship between the Crown and the true owner of the land, and what is the relationship between the grantee and the true owner of the land? As native title holders have not granted an "estate" in land, it is meaningless to talk of them holding an "estate" in land. It is true that the grant of a lease is an assertion of control over land, but a grant of a lease is not evidence of ownership of the land by the grantor. As stated in Re Southern Rhodesia : “the uncontested disposal of lands, as upon a grant for value, may be indicative of ownership in the grantor or it may not ”. 111 (emphasis added) The Crown must prove its title.

What is required to determine the ownership question is “the identification of the rights which vesting … under the relevant .. legislation gave to the body or person in whom it was vested.” What is “vested” may be “no more than is necessary for the public body to discharge its function.” 112

As always, in a question such as the present, the relevant starting point is the legislation; it is not what has been held about other statutes, even by courts of high authority. 113

109 Wik at 95 per Brennan CJ. 110 §2.2(a)(i) Maori title as property. 111 [1919] AC at 244. 112 Ward at [225]-[227] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 113 Ward at [228] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. This consistent with the approach of the Wik majority in determining the meaning of rights conferred by grant of a statutory “pastoral lease”. The majority analysed the conception of the pastoral lease in

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Thus, legislation which permitted Maori land to be “set apart reserved and taken” be executive act vested title in the Crown and extinguished Maori customary title, if the land was in fact “taken”. 114 Executive acts which simply “set apart and reserved” land that was later granted, did not vest title or ownership in the Crown. 115

The principle, that one must ascertain from the language and intention of the legislation what is meant by any taking or vesting of title to land, also applies to the vesting of title to other objects of property rights, such as minerals. 116 The vesting of “property” in the Crown may indicate a clear and plain intention to extinguish all other proprietary interests, including native title rights over that object, or the vesting may not indicate such intention. 117

Where the law does not recognise ownership rights, but only limited property rights, as is the case with wild animals, 118 flowing water, 119 or the

legislation and historical documentation, including Imperial despatches, to hold that, at 120 per Toohey J, that it “was unlikely that the intention of the legislature … was to confer exclusive possession on the lessees to the exclusion of Aboriginal people.” Similarly 147 -154 per Gaudron J; 171-175 per Gummow J; 227–30, per Kirby J. 114 Faulkner v Taurunga District Council [1996] 1 NZLR 357 at 364 . 115 Manu Kapua v Para Haimona [1913] AC 761. The facts of the case are set out in the text accompanying footnote 255. 116 The majority in Ward at [383] Gleeson CJ, Gaudron, Gummow and Hayne JJ held that “Even if such a right [native title right to minerals] had been established then, as Beaumont and von Doussa JJ held, those rights would have been extinguished by s 117 of the Mining Act 1904 and s 9 of the Petroleum Act 1936”. This was because, as stated at [377]: “by s 117 of the Mining Act 1904 (WA), and s 9 of the Petroleum Act 1936 (WA) the Crown appropriated to itself an interest in the minerals described in the Mining Act 1904 , and in petroleum, “which amounts to full beneficial ownership, and that accordingly any native title that may have existed in relation to minerals or petroleum has been extinguished”. Beaumont and von Doussa JJ reached the same conclusion with respect to the Minerals (Acquisition) Ordinance (NT). 117 R v Bernard 2003 NBCA 55 at [185] “the Crown's argument ..[is] that by vesting licensees and lessees with ownership of timber growing on Crown lands, the legislature intended to extinguish aboriginal title and any treaty right to harvest and sell timber … I see the legislation as expanding the rights of lessees and licensees as against wrongdoers and not as an implicit attempt to extinguish a treaty or aboriginal right.” 118 Yanner at [28] per Gleeson CJ, Gaudron, Kirby and Hayne JJ (wild animals): “the statutory vesting of ‘property’ in the Crown by the successive Queensland fauna Acts can be seen to be nothing more than ‘a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.’” 119 In Hayes v Northern Territory [1999] FCA 1248 at [120] the Federal Court held the Water Act 1992 (NT) s.9 which provided: “Subject to this Act, the property in and the rights to the use, flow and control of all water in the Territory is vested in the Territory” extinguished native title water rights to the extent they could not be brought within statutory reservations in the Act. Water rights are generally statutory rights: Williams v Morley (1824) 2 B & C 910: “Flowing water is originally publici juris. So soon as it is appropriated by an individual, his right is coextensive with the beneficial use to which he appropriates it…Running water is

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seabed, 120 the vesting of “property” in the Crown has, in Australian and comparative jurisprudence, been interpreted as not necessarily amounting to the vesting of a right which extinguishes native title in the absence of a clear and plain intention to this effect.

(e) The Crown as the source of title in the absence of allodial title

It has been earlier argued that the doctrine of the Crown as the source of title was the premise for the doctrine that native title was inalienable other than to the Crown. 121 The doctrine that native title was alienable only to the Crown enabled the Crown to perfect its title to land. It followed that until Aboriginal “ownership” 122 of land was transferred to the Crown, the only possible purchaser of the land, the Crown did not own the land. Once the Crown owned the land, it could then grant interests in the land out if its present proprietary right. In Australia, the Crown has not exercised a sovereign power to purchase native title, or to vest allodial title in itself. As the Crown has no allodial title, it follows that the Crown cannot grant an estate in fee simple, or common law lease, out of its allodial title. If the Crown did not extinguish the property right of native title by purchase, one must turn to the other legal principles relevant to the extinguishment of property rights.

not in its nature private property. At least it is private property no longer than it remains on the soil of the person claiming it.” 120 Ngati Apa at [113] per Gault P (seabed): “It was submitted for the Crown that s.7 Territorial Sea Contiguous Zone and Exclusive Economic Zone Act 1977 … extinguished that status [Maori title]. I am not persuaded that is so. Those provisions deem the seabed “to be and always to have been vested in the Crown” but subject to the grant of any estate or interest therein whether made before or after the commencement of each of the Acts.” 121 §4.4(e)(iv) The limitation on alienation: the Crown as the source of title. 122 Ngati Apa at [37] per Elias CJ: “From the beginning of Crown colony government, it was accepted that the entire country was owned by Maori according to their customs and that until sold land continued to belong to them”.

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§6.2 Because native title is a property right, a clear and plain legislative intention to extinguish is required

The Crown did not acquire allodial title to land on sovereignty, and has not exercised its sovereign power to acquire allodial title, or vest allodial title in itself. Prior to the creation of statutory proprietary interests, native title was the only proprietary interest in land under Australian law. Native title cannot be extinguished by the mere operation of the common law. 123 This section examines the principles governing the executive or legislative extinguishment of property rights and native title rights.

Whether the enactment of legislation is intended to extinguish property rights, or create an executive or legislative process by which proprietary rights may be taken or extinguished, depends on the proper intention of the legislation. Courts approach the interpretation of legislation with various assumptions in mind. These assumptions are not factual “predictions, capable of being verified or falsified” but are rather expressions of “legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament”. 124 As part of these legal values, there is a presumption that Parliament is not to be taken to have intended that legislation abrogate existing rights, unless it does so clearly. 125 The rationale for the presumption is found in the legal value that it is “in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”. 126

123 Re Ninety-Mile Beach [1963] NZLR 461, 477-78 per TA Gresson J: “the contention.. that customary native title over the had been extinguished by operation of the common law .. would in effect amount to depriving the Maoris of their customary rights over the foreshore by a side wind rather than by express enactment”. 124 Al-Kateb v Godwin (2004) 219 CLR 562 at [20] per Gleeson CJ. 125 Parliament is not to be taken to have intended to abrogate existing rights unless it does so clearly: see Bropho v Western Australia (1990) 171 CLR 1 at 18. R v Mercure (1988) 48 DLR (4th) 1 at 55, La Forest J for the majority: “I begin with the well-established principle that statutes are not to be read as interfering with vested rights unless the intention is declared expressly or by necessary implication”. Similarly 1 Blackstone Commentaries at 127-29, 138- 45; 8 Halsbury's Laws of England (4 ed, London: Butterworths, 1974) at [828], [833]. 126 Potter v Minahan (1908) 7 CLR 277 at 304, adopted in Al-Kateb v Godwin (2004) 219 CLR 562 at [19] per Gleeson CJ. In Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 the High Court held there that the Mining Act 1906 (NSW) should be construed so as to not interfere with a landowner’s right to carry on mining operations on his own land. Barwick CJ (at 181) applied “the fundamental principle that if Parliament intends to derogate from the common law right of the citizen it should make its law in that respect plain ... The courts are not entitled, and ought not, to eke out a derogation of such private rights by implications not rendered necessary by the words used by Parliament but merely considered to be consistent with the policy which the courts conclude or suppose the Parliament intended to implement”.

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(a) Extinguishment of property rights requires a clear and plain intention

The property right is a fundamental common law right. 127 The general presumption that Parliament is not to be taken to have intended that legislation abrogates rights, applies to property rights. 128 Executive power to affect property rights only exists pursuant to a statutory conferral of power. 129 A delegation from the legislature to the executive authorizing the taking of property must be clearly expressed. 130

Compulsory acquisition legislation enables the acquisition of proprietary interests in land. The extinguishment of property is at the heart of the legislative purpose, and compulsory acquisition legislation creates an executive or legislative process, the clear and plain intention of which is to extinguish some or all property rights including native title. 131 The use of a word such as “take” in relation to land does not necessarily refer to the acquisition of ownership or “full title”. 132 What the legislation means by using the word “take” is a matter of legislative intention. An intention to extinguish all property rights is manifested to the extent that such legislation permits the vesting of a property right, usually an estate in fee simple, in the Crown or other statutory body, “free and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates and easements”, 133 or by the adoption of a similar expression.

The requirement for a clear and plain intention also applies to the protection of property rights which derive from common law custom. Forbes v Ecclesiastical Commissioners 134 involved the grant of property by the Ecclesiastical Commissioners under legislation which proved for the grant

127 The usually cited statement is that of Lord Camden in Entick v Carrington (1765) 19 St Tr 1029 at 1030: “The great end for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been abridged by some public law for the good of the whole.... By the laws of England, every invasion of private property constitutes a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing.” 128 Pearce and Geddes op cit at [5.17]-[5.19]. 129 The Proclamations Case (1610) 12 Co R 74 (KB). 130 Simpson v South Staffordshire Water Works Co (1865) 34 LJ (NS) Ch 380 at 387. 131 See discussion in Ward at [432]; similarly Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 where acquisitions or rights effected under the Lands Acquisition Act 1906 (Cwth) were held to extinguish native title. If there was any doubt, the Wik Amendments provided that the compulsory acquisition of land extinguishes native title: s.24MD(2)(c) Native Title Act. 132 Osoyoos Indian Band v Oliver (Town) [2001] 3 SCR 746 at [86]: “To elaborate further, the word “take” in relation to land does not necessarily refer to the acquisition of full title. Rather, The Dictionary of Canadian Law (2nd ed 1995) defines “take lands” as including to “enter upon, take possession of, use and take lands for a limited time or otherwise or for a limited estate or interest”. Similarly Belfast Corp v OD Cars Ltd [1960] AC 490 at 523. 133 Section 16(1) of the Lands Acquisition Act 1906 (Cwth). 134 Forbes v Ecclesiastical Commissioners (1872) LR 15 Eq 51.

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to be “free and absolutely discharged from all rights of common”. 135 The court held that the power to discharge the land of such rights did not include the extinguishment of the customary right to use the green “for enjoyment and exercise, amusement and recreation”:

To hold otherwise would be to destroy by a side-wind public rights which were not in the contemplation of the Legislature. 136

The taking of property rights is not something that can occur as an unspecified consequence of the doing of an otherwise lawful act. 137 The taking of a property right may be the taking of one’s ability to live:

Expropriation constitutes a drastic interference with an individual's right to property. It allows a government to deprive a person of his or her land. In some cases this may mean that an individual loses a home, a “safest refuge”. In other cases, such as the case at bar, expropriation may lead to the loss of one's livelihood. 138

(b) Extinguishment of native title requires a clear and plain intention

Australian and comparative jurisprudence apply a principle that a clear and plain intention is required to extinguish native title on three bases: on the basis that native title is a legal right, 139 on the basis that native title is a property right, 140 or simply on the basis that it is native title:

It is unnecessary for our purposes to consider the several juristic foundations - proclamation, policy, treaty or occupation - on which native title has been rested in Canada and the United States but reference to the leading cases in each jurisdiction reveals that, whatever the juristic foundation assigned by those courts might be,

135 Gifts for Churches Act 1811 (UK), 51 Geo 3 c.115 s.2. 136 Forbes v Ecclesiastical Commissioners (1872) LR 15 Eq 51 at 55. 137 Barrington's Case (1611) 8 Co Rep 138a, quoting in Boswell's Case (1584): with respect to a Private Act: “when an Act makes any conveyance good against the King, or any other person or persons in certain, it shall not take away the right of any other, although there be not any saving in the Act.” 138 Leiriao v Val-Bélair (Town) [1991] 3 SCR 349 at 356-57 per Lamer CJ, La Forest and L'Heureux-Dubé JJ (diss). Coke on Littleton at 162: “For a man's house is his castle, and each man's home is his safest refuge”. 139 Mabo at 110 per Deane and Gaudron JJ, Gumana v Northern Territory [2005] FCA 50 at [69]: “Parliament is not to be taken to have intended to abrogate existing rights unless it does so clearly”. Similarly Sparrow at 1099; Gladstone at [31]. 140 Mabo at per Toohey J at 195; Calder at 404 per Hall J; Lipan Apache Tribe v United States (1967) 180 Ct Cl 487 at 492: “In the absence of a “clear and plain indication” in the public records that the sovereign “intended to extinguish all of the (claimants') rights” in their property, Indian title continues”.

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native title is not extinguished unless there be a clear and plain intention to do so. 141

The New Zealand Court of Appeal has labelled this the “protective approach adopted in the earlier American and Privy Council authorities [which] is to be seen in more recent rulings of the Supreme Court of Canada, the High Court of Australia and this Court”. 142 In Mabo 143 and the Native Title Act Case the High Court adopted the principle against extinguishment as the applicable presumption:

To discharge the onus, it is necessary to show at least that the Crown has manifested clearly and plainly an intention to extinguish all native title. So much is required of any statute which is said to extinguish native title which has survived acquisition of a territory by the Crown. 144

This principle was also accepted by the Wik majority. 145 A “law of general application” cannot meet the standard of “clear and plain intention” needed to extinguish native title, 146 although “express” extinguishment of native title is not required. 147

The drafting of legislation which extinguishes native title is a straightforward matter. The Queensland Coast Islands Declaratory Act 1985 (Qld) and the Land (Titles and Traditional Usage) Act 1993 (WA) are Acts that clearly extinguish native title. 148 Similarly the Wik Amendments provided that “previous exclusive possession acts” extinguished native title. 149 The Foreshore and Seabed Act 2004 (NZ), on the assumption that they might exist, clearly and plainly extinguished Maori customary rights in the foreshore and seabed and replaced them with limited rights provided under the Act. 150 However, as noted earlier, prior to the filing of the claim in Mabo ,

141 Mabo at 64 per Brennan J, similarly Wik at 85 per Brennan CJ (diss) ; R v Bernard 2003 NBCA 55 at [177] 142 Ngati Apa at [148] per Keith and Anderson JJ. 143 Mabo at 64 per Brennan J it “must reveal a clear and plain intention to do so, whether that action be taken by the Legislature or the Executive.”; similarly at 111 “clear and unambiguous” per Deane and Gaudron JJ; at per Toohey J at 195. 144 Native Title Act Case at 423 per Mason CJ, Brennan, Deane, Gaudron, Toohey, McHugh JJ. 145 Wik at 123-34 per Toohey, 166 per Gaudron J, 169 per Gummow J, 249 per Kirby J. 146 Delgamuukw at [180] per Lamer CJ: “First, a law of general application cannot, by definition, meet the standard … as one of “clear and plain” intent. 147 Gladstone at [34]: It does not require “language which refers expressly to its extinguishment of aboriginal rights”, adopted in Delgamuukw at [180] per Lamer CJ; similarly Osoyoos Band v Town of Oliver [2001] 3 SCR 746 at [57]. 148 See legislation and discussion in §3.3(b) Denial of native title as a denial of the right to enjoy property contrary to the guarantee of equality before the law in the RDA . 149 See §1.2 An overview of the Australian law of native title 150 Section 10 provided: ‘customary rights claim’ means any claim in respect of the public foreshore and seabed that is based on, or relies on, customary rights, customary title,

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native title rights were not generally in contemplation of the legislature, and so any inquiry into a pre-Mabo legislative intention to extinguish native title “is somewhat artificial when it is recalled that …the Aborigines and their title to land were ignored” 151 by legislation.

In Mabo it was stated that general legislation permitting the management of Crown lands was not be taken as extinguishing native title. 152 Such legislation was not intended to render native title holders trespassers or persons in “unlawful occupation of any Crown land”.153 This approach was confirmed in Ward : “neither the reservation of the land nor placing it under the control of the Shire extinguished any native title right to hunt and gather”. 154 Something more is required: something that provides an intention to extinguish native title, rather than merely affect or regulate native title rights. 155

aboriginal rights, aboriginal title, the fiduciary duty of the Crown, or any rights, titles, or duties of a similar nature, whether arising before, on, or after the commencement of this section. 151 Native Title Act Case at 431-33 per Mason CJ, Brennan, Deane, Gaudron, Toohey, McHugh JJ. 152 Mabo at 111 per Deane and Gaudron JJ; at 196 per Toohey J set out footnote 101. 153 Wik at 194 per Gummow J. 154 Ward at [267] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 155 Mabo at 64 per Brennan J: “A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title”. Yarmirr FFC at [360] per Beaumont and Von Doussa JJ: “Any native title proved to exist may be extinguished by operation of law. Thus, a legislative or executive act that expresses or exhibits a clear and plain intention to extinguish native title, or a native title right or interest, will extinguish it. However, such an intention is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title.”

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§6.3 Extinguishment of native title in the absence of acquisition of allodial title or a clear and plain extinguishment: the Crown grant of rights to land

In addition to surrender or sale of native title to the Crown, and the enactment of legislation which clearly and plainly extinguishes native title, or provides an executive or legislative process clearly and plainly intended to extinguish native title, Australian jurisprudence alone has set out two additional bases on which native title can be extinguished:

• by use of land in a way that is inconsistent with the recognition of any continuing native title right (a proposition since abandoned); and • by Crown grant under general Crown lands management legislation of a right inconsistent with a native title right.

Australian jurisprudence has held that general Crown lands management legislation did not extinguish native title. 156 It has not held that such legislation created an executive and legislative process manifesting an intention to extinguish native title. However in Fejo the High Court took the view that the power to grant an estate in fee simple under Crown lands legislation authorised the grant of a right to land which extinguished native title, by reason of an inconsistency of rights test. Extinguishment of native title on the basis of an inconsistency of rights has been rejected in Canadian jurisprudence. The extinguishment of native title is determined by the legislative intention. 157 The Fejo decision involved the abandonment of the requirement for a clear and plain intention to extinguish native title. In Ward the High Court applied the inconsistency of rights test set out in Wik to confirm the partial extinguishment of native title by grant of leases conferring rights defined by statute, bringing about extinguishment to the extent of the inconsistency of rights. 158

This section examines how the two unique Australian propositions about extinguishment of native title are explained. Ultimately both propositions derive from a prior classification of the property right of native title as an

156 §6.1(d)(vi) Acquisition of allodial title by legislation. 157 Delgamuukw at [180] per Lamer CJ: “the standard ..[of] the extinguishment of aboriginal rights … was laid down in Sparrow at 1099, as one of "clear and plain" intent. In that decision, the Court drew a distinction between laws which extinguished aboriginal rights, and those which merely regulated them. Although the latter types of laws may have been "necessarily inconsistent" with the continued exercise of aboriginal rights, they could not extinguish those rights. … My concern is that the only laws with the sufficiently clear and plain intention to extinguish aboriginal rights would be laws in relation to Indians and Indian lands.” Delgamuukw BCCA, see footnote 274. In Delgamuukw BCSC at 411 McEachern CJ held extinguishment arose out of colonial enactments which demonstrated an intention to manage Crown lands in a way that was inconsistent with continuing aboriginal rights. This intention to extinguish did not only apply to lands that had actually been granted to third parties, but rather all Crown land in British Columbia. 158 §1.2 An overview of the Australian doctrine of native title.

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inferior “right” or “property”, when compared to proprietary interests in land under Crown grant. Such propositions avoid the issue of whether native title holders or the Crown are, in any sense, owners of the land over which interests have been granted, and avoid engaging the argument that rights under Crown grant are rights against the whole world only if they are carved out of an allodial title or a perfected title, carved out of the Crown’s proprietary interest in land against the whole world.

(a) Crown use of land does not extinguish native title

In Mabo , Brennan J held that where the Crown has “appropriated” land to itself and used the land in a manner which precludes the continuing concurrent enjoyment of native title, native title is extinguished to the extent of the inconsistency. 159 This approach was endorsed in the Native Title Act Case ,160 and summarised in Wik by Brennan CJ:

the Crown, without statutory authority, may have acquired beneficial ownership simply by appropriating land in which no interest has been alienated by the Crown ... the appropriation of the land gives rise to the Crown's beneficial ownership only when the land is actually used for some purpose inconsistent with the continued enjoyment of native title. 161

The idea that any person can appropriate land owned by another by mere use, as opposed to adversely possessing the land for a period leading to a presumed transfer of an estate in fee simple to that person at the end of the period, is unprecedented in Australian law, English law or comparative jurisprudence. In essence, Brennan J’s position is that because the Crown asserts by mere use, without statutory authority, rights akin to ownership, this gives the Crown ownership and thereby extinguishes native title. The language of the Native Title Act Case is subtly different: because the Crown asserts rights akin to ownership, this extinguishes native title. The discussion of whether, by mere use, ownership is actually vested in the Crown is avoided:

159 Mabo at 69-70 per Brennan J: “Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency.” It is made clear in the remainder of the paragraph that extinguishment takes affect when the land is used for the purpose for which it was appropriated. 160 Native Title Case at 453 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ: see text accompanying footnote 162. 161 Wik at 85-86 per Brennan CJ. However, somewhat inconsistently, all members of the Wik majority held extinguishment is determined by the legal effect of a grant, rather than whether the rights conferred under the grant are exercised: Toohey J at 126, Gaudron J at 135, Gummow J at 135, Kirby J at 185. Brennan CJ (diss) at 87: to “postulate a test of the inconsistency not between the rights but between the manner of their exercise would be to deny the law's capacity to determine the priority of rights over or in respect of the same parcel of land”.

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their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown's (or a statutory authority's) power ... to appropriate the land and use it inconsistently with enjoyment of the native title. 162

The High Court drew this distinction for the reasons that became apparent in Wik . Unlike Brennan CJ, the Wik majority denied that radical title could expand to allodial title, and declined to hold that mere use was the exercise of a sovereign power which gave the Crown beneficial ownership of land.

The mere use doctrine is not a proposition about the taking of possession, a process which gives the dispossessed a remedy. It is a proposition about the extinguishment of a property right. While the doctrine of adverse possession is based on the transfer of rights from the true owner, the mere use doctrine can only derive from a premise that native tile holders did not own the land, or have property rights in the land or have personal rights against the Crown. Yet Brennan J expressly affirmed each of these propositions in Mabo . If mere use can extinguish the property right of native title, without a remedy for its loss, this raises the question of whether native title is considered a legal right. 163

On Brennan CJ’s view as expressed in Mabo and Wik , Crown use of land took ownership from the native title holders and gave it to the Crown. The decision of the Wik majority was that acquisition of ownership required the exercise of sovereign power, and this lead to the view expressed in Ward: actual use or non-use of the land is not relevant to “the ultimate question” of whether native title has been extinguished.

The reference … to use of the land that is reserved, may distract attention from the relevant inquiries. They are, as we have said, whether rights have been created in others that are rights inconsistent with native title rights and interests, and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests. …the basic inquiry is about inconsistency of rights , not inconsistency of use ”. ( emphasis in original )164

162 Native Title Case at 453. 163 Ubi jus, ubi remedium – “where there is a right there is a remedy”. See §4.3(b) The fragmentation of the Aboriginal connection to land: the common law as a jurisprudence of rights . 164 Ward at [214]-[215] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “It is important to recall that the ultimate question is whether, by the steps that were taken, the Crown created in others, or asserted, rights in relation to the land that were inconsistent with native title rights and interests over the land…The reference by Brennan J, in the passage of his reasons in Mabo that is set out earlier, to use of the land that is reserved, may distract attention from the relevant inquiries. They are, as we have said, whether rights have been created in others that are rights inconsistent with native title rights and interests, and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests. Use

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By avoiding the language of ownership, Ward avoids the issue of whether the Crown, as mere user, is trespasser on land held under native title or has infringed a native title right. However, Mabo had already indicated that native title was a legal right protected legal remedies. The issue was put to one side by Ward as a distraction to the relevant inquiry and irrelevant to the ultimate question of extinguishment of native title.

In the absence of statutory rights, the Crown has no present proprietary interest in the land. In the absence of a legislative conferral of executive power, the Crown’s prerogatives do not empower it to deprive subjects of their property rights over land without payment of compensation. 165 The doctrine of extinguishment by mere use can only be supported on pragmatic considerations outside legal principle: because the Crown has actually used land, as if it were the true owner of the land, it became the true owner. What this approach indicates is an assumption about the shape the law of native title must have, if priority is to be given to existing and historical Crown use of land. Because this approach was unsustainable in legal principle, subsequent jurisprudence has abandoned it.

(b) The Crown cannot by grant derogate from rights or privileges

In Mabo , Brennan J stated that the reason why a grant of an estate in fee simple, or common law lease, extinguished native title was that native title was not protected by the “presumption” against derogation:

Therefore an interest validly granted by the Crown, or a right or interest dependent on an interest validly granted by the Crown cannot be extinguished by the Crown without statutory authority. As the Crown is not competent to derogate from a grant once made [Stead v Carey 166 ], a statute which confers a power on the Crown will be presumed (so far as consistent with the purpose for which the power is conferred) to stop short of authorizing any impairment of an interest in land granted by the Crown or dependent on a Crown grant. But, as native title is not granted by the Crown, there is no comparable presumption affecting the conferring of any executive power on the Crown the exercise of which is apt to extinguish native title. 167

of the land may suggest, it may even demonstrate, that such rights have been created or asserted, but the basic inquiry is about inconsistency of rights , not inconsistency of use ”. (emphasis in original) 165 §6.4 Compensation for the extinguishment of native title. 166 Stead v Carey (1845) 1 CB 496 at 523. 167 Mabo at 64 per Brennan J.

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In the Native Title Act Case this approach was affirmed. 168 However, the common law protects property rights not derived from Crown grant, against extinguishment by an otherwise valid Crown grant, not by "presumptions", but by the substantive common law principles discussed below.

It is necessary to note the distinction between grants out of allodial title (the carving of a present right out of a pre-existing right) and the grant of a right or privilege (the first creation of a right). As to the relevance of any presumption against derogation with respect to the grant of interests from allodial title, it has already been argued that once an estate in fee simple has been granted, the Crown no longer holds meaningful proprietary interests over that land only seigneury rights, 169 and it follows that a “presumption” against the Crown granting further interests in that land in derogation of the earlier interest is unnecessary because a subsequent grant to this effect is legally impossible. As to the relevance of any presumption against derogation with respect to the grant of a statutory right or privilege that did not exist before the grant – the situation in Stead v Carey – different issues arise. It can be accepted that all powers of creation of interests in land in Australia are derived from legislation, 170 and “a legal or equitable interest in land … cannot be extinguished without statutory authority. 171 A first creation of right, which in the Australian context includes the grant of either an estate in fee simple or a pastoral lease under Crown lands legislation, may be an act that purports to invade or destroy existing or vested rights. A valid first creation of right axiomatically creates a vested right, and this right itself may be protected against invasion or destruction by common law principle.

(i) Stead v Carey: the principle against the invasion of rights by Crown grant

Stead v Carey concerned an invention patent granted to the plaintiff, but void for non-registration within the period allowed, later validated by legislation, but after a similar patent (which included the plaintiff's invention) had been granted and validly registered by the defendant. The court held that the validation of the earlier grant voided the later grant,

168 Native Title Act Case at 439 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ. 169 §6.1(a) (v) After grant of an estate in fee simple the Crown retains no proprietary interests in land 170 Mabo at 63: “In Queensland, the Crown’s power to grant an interest in land is … an exclusively statutory power”; similarly the other Australian Colonies: Wik at 91 per Brennan CJ; at 189 per Gummow J. 171 Native Title Act Case at 438-439 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ: “So far as it consists in ownership of or a legal or equitable interest in land, it cannot be extinguished without statutory authority” citing Mabo at 64 per Brennan J.

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because this was the intended effect of the validating legislation. Erle J stated:

The legislature has pointed out the mode in which void patents may be rendered valid; and no exception is made in favour of parties who have taken out patents in the intermediate time. If the defendant's patent included the plaintiff's invention, it would be void. 172

However, in coming to the same conclusion, Creswell J stated:

The Queen, by granting one man a patent, does not grant him the privilege of invading the rights of another man … It was not competent to the Queen, by her grant to the defendant, to derogate from the grant she had already made to the plaintiff: and the effect of the act of parliament is, to restore him to all the rights he had under the patent as originally granted to him. 173

The principle against derogation was expressed as part of a wider principle: any grant, first or subsequent, is not taken as invading the rights of another. In Mabo a presumption relating to the affect of a Crown grant of privilege on the capacity of the Crown to make a subsequent grant of the same privilege was elevated to a legal principle that explains why a first Crown grant of right (not carved out of a pre-existing allodial title) extinguishes existing native title rights. This new principle is not derived from the common law principle against the invasion of rights by Crown grant, but from pragmatic concerns relating the validation of Crown grants which may have offended the principle against invasion of rights.

(ii) The honour of the Crown: the king not to be deceived in his grant

The Native Title Act Case sourced the presumption against derogation to a uncontextualised passage in Chitty’s Prerogatives , a passage dealing with franchises (the grant of a privilege), though this was not made clear:

King cannot take away, abridge, or alter any liberties or privileges granted by him or his predecessors, without the consent of the individuals holding them. 174

The High Court immediately followed this quotation with its own statement:

172 Stead v Carey (1845) 1 CB 496 at 523 per Erle J. 173 Stead v Carey (1845) 1 CB 496 at 523 per Creswell J. 174 Chitty’s Prerogatives at 125, which in turn sources it to Kyd S, A Treatise on the Law of Corporations (London: J Butterworth, 1793-94). Chitty’s Prerogatives at 132: “It is a principle of law, that the king is bound by his own and his ancestors' grants; and cannot, therefore, by his mere prerogative, take away vested rights, immunities or privileges.”

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In particular, a grant cannot be superseded by a subsequent inconsistent grant made to another person ( Earl of Rutland's Case 175 ). 176

Unlike the passage in Chitty, the Earl of Rutland's Case, did concern the grant of an interest in land, and therefore, in English law, a grant sourced in the Crown's allodial title. The case involved a grant by the king of a life estate over land presently subject to a life estate under prior grant by his predecessor. The issue was whether the second grant was void. The court under Coke CJ did not cite any derogation principle but held that a different principle was at stake: the King cannot be deceived in his grant. The predecessor had granted a life estate of herbage and pannage to Markham, and the king, reciting the earlier grant in the subsequent grant, granted a life estate of herbage and pannage to the Earl of Rutland “without shewing when it shall begin”. 177 The latter grant was good: “the King was not deceived in his grant, for he has recited the estate of Markham … so that the King well knew that he could not grant that in possession, which another then held for his life.” 178 While the case was resolved by the clear and plain intention manifested in the latter grant, which was held not to be inconsistent with the former grant, it rested on the assumption that the king “well knew that” he had no power to grant a second life estate before the first expired.

The basis of the decision was not that such power existed and, in the absence of a clear and plain intention to the contrary, could result in the extinguishment of the earlier estate. The Court emphasised the lack of power to make the second grant by immediately going on to refer to Lord Chandos Case , 179 and resting its decision on the “honour of the Crown”: 180

And the case of The Lord Chandos … was resolved to be a stronger case; for there the King mistook the law, thinking …the estate tail was extinct, and that he thereupon was seised in fee, and therefore he granted the manor in possession, … But in the case at Bar the King mistook nothing, nor took upon him to grant that which he could not grant, nor was deceived in any part of his grant: …but if it may be taken to one intent good, and to another intent void, then for the King's honour, and for the benefit of the subject, it shall be taken in such manner as the King's grant may take effect, for it was not the King's intent to make a void grant. … therefore the King 's grant shall

175 Earl of Rutland's Case (1608) 8 Co Rep 55a at 55b, 56a. 176 Chitty’s Prerogatives at 125 cited Native Title Act Case at 438. 177 Earl of Rutland's Case at 55b. 178 Earl of Rutland's Case at 55b. 179 Lord Chandos Case 1 Co Rep 46a at 51a-52b. 180 Earl of Rutland’s Case (1608) 8 Co Rep 55a at 56b (footnotes omitted).

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not he taken in such sense, for then the grant will be void: but it shall be taken in such sense as it may stand with law. 181 A presumption against derogation by Crown grant covers three situations. It is a presumption to interpret the effect a Crown grant, either when the Crown has no power to make such a grant, 182 or to resolve ambiguities when the grant could be interpreted as including interests that were beyond the power of the Crown to grant. Both these situations involve application of the nemo dat principle. Thirdly, the presumption reflects a wider principle, that the honour of the Crown requires that the Crown not make void grants. These principles also apply to legislation authorising Crown grants. The presumption against later derogation is a presumption to preserve the honour of the Crown with respect to a grant, “for it was not the King's intent to make a void grant”. 183

Notwithstanding the fiction under English law, that at some time in the past the Crown has mediately or immediately granted an estate in fee simple to a predecessor in title of the current holder of an estate in fee simple, it is also a principle of English law protecting the honour of the Crown, and perhaps limited to situations of actual grant, that:

the king's excellency is so high in the law, that no freehold may be given to the king, nor derived from him, but by matter of record . And to this end a variety of offices are erected ..through which all the king's grants must pass, … that the same may by narrowly inspected by his officers, who will inform him if any thing contained therein is improper, or unlawful to be granted. 184 (emphasis added)

The purpose of the principle that the King is not deceived in his grant is to protect the honour of the Crown. It is not, as Australian jurisprudence suggests, a presumption limited to the protection of rights under Crown grants, and conversely dictating the destruction of property rights not derived from Crown grant. The doctrine created in Mabo and endorsed in the Native Title Act Case – that the absence of a presumption against extinguishment of property rights creates a presumption that Crown grants are intended to destroy property rights arising outside Crown grant – does

181 Earl of Rutland’s Case (1608) 8 Co Rep 55a at 56a (footnotes omitted). 182 Such grants are clearly void: see footnote 45. 183 Similarly Case of Churchwardens of St Saviour Southwark (1613) 10 Co Rep 66b at 67b: “But if two constructions may be made of the King's grant, then the rule is, when it may receive two constructions, and by force of one construction the grant may according . to the rule of law be adjudged good, and by another it shall by law be adjudged void: then for the King 's honour, and for the benefit of the subject, such construction shall be made, that the King's charter shall take effect, for it was not the King’s intent to make a void grant” (footnotes omitted). City of Vancouver v Vancouver Lumber Company [1911] AC 711 (PC) at 721: “The rule is a rule of common law by which a grant by the King which is wholly or in part inconsistent with a previous grant is held absolutely void unless the previous grant is recited in it.” 184 2 Blackstone Commentaries 346.

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not protect the honour of the Crown. The newly created doctrine invades existing rights, and destroys vested rights.

(iii) The Crown cannot by grant destroy vested rights

The principle against the invasion of rights, the principle that the king is not deceived his grant and the presumption against derogation, in the case of ambiguity or a partially void grant, are not confined to protecting rights created by Crown grant, because they reflect a wider principle: non potest rex gratiam facere cum injuria et damno aliorum (The king cannot confer a favour on one subject, which occasions injury and loss to others):

It is an ancient and constant rule of law, that the king's grants are invalid when they destroy or derogate from rights, privileges, or immunities previously vested in another subject. 185

Thus “vested” rights, 186 not just those derived from prior Crown grant, are protected under the principle. 187 A presumption of non-interference with vested rights applies to the interpretation of legislation generally. 188

The first step in the reasoning to justify extinguishment of native title by Crown grant was therefore to re-interpret these wider principles as protecting only interests derived from a prior Crown grant, and this was done in Fejo, which held that every non-native title property right to land is presumed to derive from Crown grant:

Next, it was sought to draw some analogy with rights recognised in English land law like rights of common or customary rights. But reference to those rights in the present context is misplaced. They are creatures of the common law finding their origins in grant or

185 3 Coke Institutes 237 (citing Bracton) and 4 Blackstone Commentaries 397 cite this principle. Broom H, A Selection of Legal Maxims, (3ed, London, Sweet and Maxwell 1852) at 80: “Non potest rex gratiam facere cum injuria et damno aliorum (The king cannot confer a favour on one subject, which occasions injury and loss to others). It is an ancient and constant rule of law, that the king's grants are invalid when they destroy or derogate from rights, privileges, or immunities previously vested in another subject: the Crown, for example, cannot enable a subject to erect a market or fair so near that of another person as to affect his interest therein” [a reference to In the matter of the Islington Market Bill (1835) 3 Cl & F 513 at 515 where it was held that, with respect to a right of market acquired by prescription, any grant of a new market “within the common law distance of an old market, primâ facie is injurious to the old market, and therefore void”]; Earl of Rutland’s Case [discussed footnotes 175 to 181]; Alcock v Cooke [discussed footnote 45]; Grant of port where vested rights are not interfered with. See Mayor of Exeter [a reference to Mayor of Exeter v Warren (1844) 5 QB 773 at 799-800 where it was held that the Crown could create a port by grant, “so long as there was no interference with the rights previously vested”].” 186 Vested rights are distinguished from “contingent or inchoate” rights: Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [6]. 187 Islington Market Bill, Mayor of Exeter see footnote 185. 188 See cases cited footnote 125.

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presumed grant [ Attorney General v Wright; Megarry and Wade ]. And the rights that are now in issue - native title rights - are not creatures of the common law. 189

Both the very case 190 and the textbook passage 191 cited in Fejo to support the proposition of acquisition of customary rights by presumed grant deny any such general principle. Customary rights are based on a fiction of immemorial usage, not a fiction of Crown grant. 192 The general proposition in Fejo is incorrect. To the extent that proprietary interests in land are treated as rights under fictional grants by English law, the proposition is irrelevant in Australian law. In Australian jurisprudence, in the absence of the getting of allodial title, interests in land must be explained by means other then the fiction of presumed Crown grant out of allodial title, or out of an interest ultimately sourced in allodial title. In Australian jurisprudence, interests in land are either grants of rights defined by legislation, or rights derived from a such grants, or are to be explained by some other doctrine of law, such as native title.

The first step in reasoning to justify extinguishment of native title by inconsistent Crown grant was to re-interpret the principle that Crown grants do not invade or destroy vested rights, as a mere presumption against derogation of interests derived from Crown grant, and deem all

189 Fejo at [53] the footnote refers to “Attorney General v Wright [1897] 2 QB 318. See also Megarry and Wade, The Law of Real Property, 5th ed (1984) at 854”. 190 Attorney General v Wright [1897] 2 QB 318 held that an immemorial user of the foreshore by the owners of fishing-boats, of fixing moorings in the soil, may be supported either as an ordinary incident of the navigation, or on a presumption of a legal origin by grant from the Crown, or by concession by a former owner of the foreshore to all persons navigating the waters. Lord Esher MR at 321 stated: “I think such a matter is not to be traced to a grant by the sovereign or the owner of the soil, but that it is a right by the law of England, a public right in every one navigating in navigable waters. If so, the owner of the soil [the holder of a several fishery] took his rights to the soil subject to those general rights”. Only AL Smith LJ at 324 positively canvassed a presumed grant: “The answer is that the claim to the soil is subject to the ordinary incidents of navigation .. But if this inference which I draw is incorrect … In the present case this duty [of finding a legal origin] is satisfied either by presuming a grant from the Crown …or a grant from the lord of the manor.” 191 Megarry and Wade, 5th ed (1984) at 854, now Megarry and Wade op cit at 1126-27: The presumption of lost grant “was entirely a judge-made fiction” originally created to deal with user “after 1189”, that is use that could not be brought within common law custom, and though now “twenty years’ use will normally raise such presumptions”, and a right “in the nature of an estoppel by conduct”. They cite Attorney General v Wright as authority for a proposition of a presumption of a “lost port authority regulation” which was Rigby LJ’s unique contribution to the decision 192 Hammerton v Honey (1876) 24 WR 603 at 604: Custom was “invented by judges for the purpose of giving a legal foundation or origin to long usage…. you find long-continued usage which can have a legal origin, then, with the view of preserving to the people claiming them the quiet possession of the rights of property or rights of easement which they have so long enjoyed, you shall attribute these rights, if possible, to a legal origin so as to support them.” Similarly New Windsor Corp v Mellor [1975] Ch 380 at 386-387. See generally §4.3(c)(ii) The doctrine of acceptable custom: traditional law as a source of law that is subordinate to the common law.

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non-native title common law property rights with respect to land as rights derived, in fact or fiction, from Crown grant. This approach differentiates native title from all other property rights. The second step in the reasoning was to see the different property right of native title as a lesser right, a fragile right when compared to rights under Crown grant.

(c) Native title as a fragile right

High Court cases since Mabo have abandoned the language of native title as ownership and used a rhetoric of native title as a defeasible and lesser “right”, but provided little reasoning to support this. Australian law treats native title as an “fragile” or inferior species of property right. The fact that native title can be extinguished by the grant of estate in fee simple “suggests a reluctance by the Court to recognise an equation between the exclusive use of the land by traditional ... societies and by the settler society. It suggests, again, a concern with unstated pragmatic considerations.” 193

It is only if one begins from the perspective that the property right held under Crown grant is superior to property right of native title that one can justify the displacement of native title rights by Crown grant, in the absence of any clear and plain legislative intention that the grant of rights was intended to affect native title in any way. A context which sees native title as a compromised common law right, 194 once established, accommodates such a perspective. In Mabo , the majority held that native title was not protected by the “presumption” against derogation, and thus began a process by which rights under Crown grant could be classified as superior to native title. In Wik, Fejo and Ward rights under Crown grant were seen as prevailing against the rights of native title holders (persons who did not derive their rights by Crown grant) and, to the extent that rights under Crown grant were inconsistent with rights under native title, the superior former rights extinguished the latter fragile rights.

Prior to Australian native title jurisprudence, there was no conception of “fragile” rights under Australian law. The conception of native title as dependent upon the good will of the Sovereign had long since disappeared in the comparative jurisprudence, and was rejected in Mabo . Traditional rights, once recognized as native title, are rights under Australian law. There is only one legal system in Australia, and therefore only one conception of legal right. Native title is not the recognition of a reasonable custom, nor of rights under a system of mixed law or legal pluralism. Native title is a bundle of in rem property rights protected by remedies, but

193 Bartlett Equality before the Law at 391. 194 §4.5 The denial of full respect: a conclusion.

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if native title is only a “foster child” 195 of the common law, does this mean that native title is not a true common law right? 196

The conception of native title as “fragile” is located in the discussion of native title and the estate in fee simple, the former is fragile, the latter is not, 197 and was developed in Fejo by Kirby J as a “comparison between the inherently fragile native title right, susceptible to extinguishment or defeasance, and the legal rights which fee simple confers”. 198

[T]he rights which may be enjoyed compatibly with an interest in fee simple themselves derive from the same legal source. They are not rights, inherently fragile and liable to defeasance, arising outside that system and dependent for their effectiveness upon the extent to which a different legal system accords them its recognition. 199

In Kirby J’s analysis, fragility as an aspect of traditional rights carries over to native title as a common law right, a proposition inconsistent with native title as a common law right .

Putting non-proprietary native title rights to one side, 200 if native title cannot be appropriately seen as a fragile “ right ”, can it be appropriately seen as a fragile “ property ” right? A property right is not a single conception:

The amount of “property” which a specified person may claim in any resource is capable of calibration – along some sort of sliding scale – from a maximum value to a minimum value…Far from being a monolithic notion of standard content and invariable intensity,

195 Yorta at [180] per Callinan J. 196 The approach of Kirby J and Callinan J: §4.3(c)(v) A conclusion on the rules of right- recognition. 197 Yanner v Eaton B52/1998 (transcript 5 May 1999): “Gummow J: What do you understand is involved in this term “fragility” which is used in this universal discourse? Fee simples are not fragile, we all know that.”. 198 Fejo per Kirby J at [105]. In Wik he rejected the idea of native title as fragile: “The first theory … postulates the extreme fragility and vulnerability of native title. Under this theory, any action… expels native title. This is so, whatever the estate or interest granted. It does not depend upon the precise legal features of that estate or interest … The first theory is not compatible with … Mabo“. 199 Fejo per Kirby J at [108]. 200 Yarmirr at [12] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: With respect to “native title rights and interests …[n]either the use of the word “title” nor the fact that the rights and interests include some rights and interests in relation to land should… be seen as necessarily requiring identification of the rights and interests … traditionally recognised as items of “real property”. Still less do those facts necessarily require …features … necessary or sufficient to constitute “property”.

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“property” thus turns out to have an almost infinitely gradable quality. 201

The Crown grant of rights to land is, in accordance with the honour of the Crown, made on the basis that the Crown has proprietary interests to grant. The king is not deceived in his grant. A Crown grant is to be seen as fully respecting existing rights, whether or not they are derived from prior Crown grant. 202 Why does this principle not apply in Australian jurisprudence to fully respect native title property rights? If rights under Crown grant are to be accorded priority over all other proprietary interests, then it follows that all other proprietary interest are lesser. But the proposition set out in Australian jurisprudence, by bare assertion, is that it is only native title rights that are defeasible to rights under Crown grant. To imprint the term “fragile” on native title, as a consequence of the translation of traditional rights into property rights under Australian law, is to accord native title a lesser weight than other property rights. While sufficient importance has been attached to the recognition of pre-existing rights to translate them into property rights, native title is a “lesser” property right, even though extinguishment of native title is the destruction of a proprietary interest. However, even this reasoning does not take native title out of the conception of “property” under Australian law. Native title as lesser property is not a conclusion that flows from a description of native title as a property right with a sui generis content. 203

The power to extinguish native title by the Crown grant of rights was described as the source of native title’s “vulnerability” in Mabo by Deane and Gaudron JJ, 204 as the reason it was a “precarious” right in the Native Title Act Case by Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ 205 and the source of its “weakness” in Fejo by Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ 206 In Ward the joint majority discussed the “inherent fragility” of native title:

201 Gray K and Gray SF, “The Idea of Property in Land”, in Bright S and Dewar J (eds), Land Law: Themes and Perspectives (Oxford: OUP, 1998) 15 at 16. 202 §6.3(b) The Crown cannot by grant derogate from rights or privileges. 203 §4.4(d) Native title as a property right with sui generis content 204 Mabo at 112 per Deane and Gaudron JJ: “the vulnerability of the rights under native title resulted in part from the fact that they were personal rights susceptible to extinguishment by inconsistent grant by the Crown”. 205 Native Title Case at 452-53 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ: “their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown's (or a statutory authority's) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title.” 206 Wik at 84 per Brennan CJ (diss) quoted in Fejo at [44] per Gleeson CJ, Gaudron, McHugh Gummow Hayne and Callinan JJ: “Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant”.

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Reference was made in Mabo [No 2] to the inherent fragility of native title. 207 One of the principal purposes of the NTA was to provide that native title is not able to be extinguished contrary to the Act. An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. 208

According to Mabo , the imposition of a new source of authority was on the basis that pre-existing rights to land were to be fully respected as common law rights, and, as common law rights, burdened the sovereign title of the Crown to the land. To describe native title right as fragile simply because it is subject to the exercise of sovereign authority fails to distinguish the fragility of native title from the fragility of other property rights. The proposition from Mabo to Fejo and Ward is that because it can be extinguished by Crown grant native title is therefore fragile, rather than a proposition that native title is appropriately classed as a "fragile" common law right, and as a consequence of this appropriate categorisation, native title is extinguishable by Crown grant.

While the content of native title rights are sui generis , when compared with the rights under an estate in fee simple, it is not clear in what sense this is meaningful in explaining the affect that a grant of an estate in fee simple should have on native title rights. Both the estate in fee simple and communal native title confer a right of exclusive possession of land. Native title is sourced outside the common law, but native title is a common law right. The native title right to control access to land is held at the communal level, but the holding of the right at a communal level is not relevant to its calibration as a property right of maximum value, as a right of full blooded ownership. The right to control is no less absolute and no more qualified for being held communally. A general right of alienation is a traditional common law incident of ownership, and this incident is absent from native title. If limited alienation derives from the principle of the Crown as source of title, then limited alienation reflects only the incapacity of settlers to purchase Native title is fully alienable to the Crown and the Crown has the capacity to acquire native title by “surrender or purchase”. 209 The limitation on alienation does not deny native title a proprietary status, but it does make native title a form of title that is different to fee simple ownership. It

207 Contrary to this statement, the concept of fragility does not appear in Mabo. 208 Ward at [91] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 209 §4.4(e)(v) The doctrine of inalienability as explained in Mabo.

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is not a limitation on native title holders ability to enjoy exclusionary rights of control.

If one begins with the proposition that native title is the only form of proprietary interest that can be extinguished by legislation which does not manifest a clear and plain intention to do so, then native title is fragile in this sense. Australian jurisprudence began by affirming the requirement for a clear and plain intention to extinguish native title. 210 However, the principle was ignored in Fejo,211 and Ward simply affirmed the inconsistency of rights test as the sole requirement for determining the extinguishment of native title:

The cases often refer to the need for those who contend that native title has been extinguished to demonstrate a “clear and plain intention” to do so [footnote: For example, Native Title Act Case at 423 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ]. That expression, however, must not be misunderstood. The subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant. Nor is it relevant to consider whether, at the time of the act alleged to extinguish native title, the existence of, or the fact of exercise of, native title rights and interests were present to the minds of those whose act is alleged to have extinguished native title. It follows that referring to an “ expression of intention” is apt to mislead in these respects. As Wik and Fejo reveal, where, pursuant to statute, be it Commonwealth, State or Territory, there has been a grant of rights to third parties, the question is whether the rights are inconsistent with the alleged native title rights and interests. That is an objective inquiry which requires identification of and comparison between the two sets of rights. 212 (footnotes omitted) (emphasis in original)

The reasoning set out above does not address the issue of whether the language and intention of legislation evinces an intention that the grant of interests to third parties is to extinguish native title, the relevant question that remains part of the law in comparative jurisprudence. 213 Instead, the joint majority state that the subjective intent of the executive officer granting the statutory rights is irrelevant, a proposition that common law

210 §6.2 (b) Extinguishment of native title requires a clear and plain intention 211 In Fejo at [106] only Kirby J accepted the need for a clear and plain intention to be found and stated that this was to be found in the grant of an interest that equated to “every act of ownership” in respect of land over which the native title existed. This approach also begins from the notion that where rights under Crown grant and native title rights are inconsistent, rights under Crown grant prevail. 212 Ward at [78] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 213 §2.3(b) Extinguishment of native title.

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jurisprudence has never put forward. 214 What the clear and plain intention principle requires is an expression of statutory intention, as made clear in the passage of the Native Title Act Case referred to: “the Crown has manifested clearly and plainly an intention to extinguish all native title. So much is required of any statute which is said to extinguish native title”. 215 The requirement for a legislative intention is circumvented in Ward by asserting that it is not “the question”, “the question is whether the rights are inconsistent with the alleged native title rights”. The extinguishment of native title is the common law outcome of the inconsistency of rights, 216 not the result of a clear and plain legislative intention.

A conclusion that native title is a fragile right can only follow from an assumption to that effect. It cannot be deduced from a comparison between the content of the rights to control and use land under native title and the rights under an estate in fee simple (common law right compared to common law right), nor from a comparison between the connection to land under traditional laws and customs and ownership under Australian law (traditional rights compared to common law rights).217

(d) Australian jurisprudence: the extinguishment of native title by grant of an estate in fee simple

Ultimately, the proposition in Australian jurisprudence that the grant of an estate in fee simple extinguishes native title rests on the superiority of common law property rights over fragile native title rights. The argument that, in the absence of a clear and plain legislative intention, the grant of an estate in fee simple under general Crown lands legislation per se extinguishes native title has not been adopted in the comparative

214 Mabo at 64 per Brennan J is clearly talking about a legislative intention: “A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title”. Yarmirr at [261] per Kirby J: “The purpose of a legislature must be ascertained objectively from the language of the legislation that it enacts”. 215 The passage is set out in full in the text accompanying footnote 144. 216 Ward at [82] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “It is essential to identify and compare the two sets of rights: one deriving from traditional law and custom, the other deriving from the exercise of the new sovereign authority that came with settlement. It is true that the NTA (in par (b)(ii) of s 23G(1)) and the State Validation Act (in par (b)(ii) of s 12M(1)) speak of the “suspension” of inconsistent native title rights and interests in certain circumstances. However, this statutory outcome is postulated upon an inconsistent grant of rights and interests which, apart from the NTA and the State Validation Act, would not extinguish the native title rights and interests.” 217 Lardil at [148] an exchange between the trial judge and a native title claimant which emphasised a oneness with country: “Q: When one thinks about the idea of connection to the natural resources … is it appropriate to use the term “ownership”? A: Only as far as owner. This is my arm, I own it. It’s connected to me. Q: Part of you? A:Yes. …Q: But it’s not the same as you own the shirt on your back or your watch or something like that? A:That’s whitefellas law.”

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jurisprudence. But Fejo asserts that the comparative jurisprudence is consistent with such a conclusion. This section examines this statement.

The grant of an estate in fee simple estate occurs as a result of the Crown exercising an executive power pursuant to legislative authority, or exceptionally as a result of the direct exercise of legislative power. 218 By describing the statutory interest granted as an estate in fee simple, legislation is defining the incidents of the interest by reference to the incidents of the common law interest bearing the same name, as legislation has been clear in removing rights that would otherwise be included in the grant. 219 But such grants are grants of rights which owe their existence and meaning to the empowering legislation. They are not grants of common law rights. As the Crown in Australia has no pre-existing allodial title out of which to carve estates in land, the first grant of rights under Crown lands legislation is the creation of rights that did not previously exist.

Crown lands legislation “ignored” native title, and is therefore to be interpreted as creating interests in land “without affecting accrued rights and existing status any more than was necessary”. 220 Something more than “the mere exercise by the Crown of rights of dominium in respect of the land” 221 is required to indicate an intention to extinguish native title. The question is therefore whether the Crown, as the source of a grant, is asserting only that it has a legal relationship with grantee, as defined by the terms of the grant, or is also asserting that the grant defines the Crown’s legal relationship with native title holders, even though the Crown is not the source of their title to land - a question put and answered in Baker Lake:

It seems to me that the grant of title to the [Hudson’s Bay] Company was intended solely to define its ownership of the land in relation to the Crown, not to extinguish the aboriginal title. 222

The cases discussed earlier 223 made the following points:

218 For example, Moore-Street Improvement Act 1890 (NSW) s.9; Parramatta Friendly Societies' Hall Site Vesting Act 1904 (NSW) s.2. 219 For example s.18 of the Crown Lands Alienation Act of 1861 (NSW) reserves to the Crown “all minerals which the said land contains.” 220 Native Title Act Case at 433 per Mason CJ, Brennan, Deane, Gaudron, Toohey, McHugh JJ; Spooner Oils Ltd v Turner Valley Gas Conservation Board [1933] SCR 629 at 638: “A legislative enactment is not to be read as prejudicially affecting accrued rights”; Martin C (ed), Oxford Dictionary of Law (4 ed, Oxford: OUP, 1997): “Vested rights are rights that have accrued to a person as opposed to rights that are yet to be acquired”. The usage of “accrued right” emphasises the immediate enforceability of the right. 221 Wik at 235 per Kirby J: “Something more is needed to remove that burden, and to extinguish the native title, than a mere exercise by the Crown of rights of dominium in respect of the land.” 222 Baker Lake at 233. 223 §6.1(b) Crown must have interests in land before it can grant interests in land.

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• The “grant of land to a subject” is premised on the assumption that the grantor has something to grant, as “this original title provides the foundation and source of all other titles.” 224 • Persons who derive their rights to land by Crown grant cannot challenge the validity of the Crown grant to them, because as against them, the Crown is the source of title. 225 • The grant of an estate in fee simple without prior surrender of native title is voidable against native title holders. 226 • The circumstances of the innocent Crown grantee (or the grantee’s successor in title) may be such that the appropriate remedy for native title holders affected by such grant is damages against the Crown, rather than the return of the land or ejectment. 227

The above line of reasoning results in a jurisprudence where, as against native title holders, the grant of an estate in fee simple has no effect on native title rights, but may result in native title holders having a remedy against the Crown limited to damages. However, from the moment native title was judicially conceived in Australia, it was envisaged that native title would be extinguished by the grant of an estate in fee simple, a common law lease of exclusive possession, and, indeed, by the mere governmental use of land. 228 The only significant difference of opinion among the six majority judges in Mabo was whether a pre-RDA right of compensation would arise by reason of the extinguishment of native title.

In Fejo the High Court justified its decision, that the grant of an estate in fee simple extinguished native title, as consistent with comparative jurisprudence:

It is clear that it is recognised in other common law countries that there can be grants of interests in land that are inconsistent with the continued existence of native title[fn1]; the question in each case is whether the later grant has had that effect [fn2]. In some cases the answer that has been given in other jurisdictions may have been affected by the existence of treaty or other like obligations. Those considerations do not arise here. In this case, the answer depends only upon the effect of a grant of unqualified freehold title to the

224 Wik at 172 per Gummow J. 225 Symonds at 391 see footnote 57. 226 Chippewas of Sarnia at [261]: “A “void” patent is said to be one that has no legal effect whatsoever, while a “voidable” patent is one that does have effect unless and until it is set aside.” 227 Chippewas of Sarnia at [311]. 228 Mabo at 217: The final order Mabo reads: “putting to one side the Islands of Dauer and Waier and the parcel of land leased to the Trustees of the Australian Board of Missions and those parcels of land (if any) which have validly been appropriated for use for administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and privileges of the Meriam people under native title, declare that the Meriam people are entitled …”

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land.

[fn1] See, for example, in the United States, Missouri, Kansas & Texas Railway Co v Roberts 152 US 114 at 117-118 (1894); in Canada, Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513 at 549; in New Zealand, Te Teira Te Paea v Te Roera Tareha [1902] AC 56 at 65; Manu Kapua v Para Haimona [1913] AC 761 at 766-767; Faulkner v Tauranga District Council [1996] 1 NZLR 357 at 365-366; in Nigeria, Sakariyawo Oshodi v Moriamo Dakolo [1930] AC 667 at 670.

[fn2] See, for example, Buttz v Northern Pacific Railroad 119 US 55 (1886); R v Sparrow [1990] 1 SCR 1075; Delgamuukw v British Columbia (1993) 104 DLR (4th) 470.229

It is said that the extinguishment of native title in the comparative jurisprudence is the effect of “grants of interests” being “inconsistent with the continued existence of native title”. The reason grants may have this effect in the comparative jurisprudence is because there is a specific legislative intention to this effect. The reference to the comparative jurisprudence is summed up with the proposition: “In this case, the answer depends only upon the effect of a grant of unqualified freehold title to the land.” This is a different proposition. It is implied that the comparative jurisprudence has determined that, treaty-like considerations aside, if rights under Crown grant and rights under native title are inconsistent, native title rights are extinguished. However, in the comparative jurisprudence the factual inconsistency of rights does not determine the issue of whether the extinguishment of native title was the intended effect of a grant. The question in Australian and comparative jurisprudence remains: what is the intended effect of the grant of an interest in land on native title? None of the cases cited in Fejo support a proposition that the intended effect of the various “grants of interests in land” under general legislation, including grants of freehold title, was to extinguish native title.

The US and New Zealand cases did not involve the grant of an estate in fee simple under general legislation, but under specific legislation. The US cases involved direct statutory grants to railroad companies. In United States, Missouri, Kansas & Texas Railway Co v Roberts the Supreme Court applied the principle that where a grant of right does not specifically abrogate Indian title, it is subject to Indian title. The New Zealand cases involved the operation of the Native Lands Acts enacted for the purpose of legislatively extinguishing Maori title, and replacing inalienable Maori title with the Crown grant of an alienable estate in fee simple called Maori freehold title. Sakariyawo Oshodi concerned the meaning of a grant of an estate in fee simple in a jurisdiction where traditional laws and customs

229 Fejo at [54].

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were recognized as a source of law, and held that Crown grants were to be interpreted as recognizing traditional rights, rather than extinguishing them. The Canadian case of Baker Lake was the only case cited which has truly raised the issue of the legal co-existence of an estate in fee simple granted under general legislation and native title, though it did not purport to provide an answer.

(e) Comparative jurisprudence: no extinguishment of native title by grant of an estate in fee simple

(i) US jurisprudence

It is useful to continue the examination of Fejo by reference to US jurisprudence, as that jurisprudence is unequivocally inconsistent with Fejo , and the US is the only jurisdiction where treaty issues seem relevant, as the Fejo passage seems to refer to the distinction in Tee Hit Ton between unrecognized Indian title, and Indian title recognized by treaty. The two cases cited in Fejo preceded the creation of the distinction between recognized and unrecognized title in Tee Hit Ton . The cases rest on the conception of Indian title as set out in Johnson v McIntosh and Tillamooks . However, Tee Hit Ton endorsed the proposition that Indian title could only be extinguished by sovereign act, and a clear and plain intention was required to extinguish Indian title, but held that such extinguishment did not give rise to a claim for compensation. To the extent that Tee Hit Ton established the latter proposition, subsequent US jurisprudence has abandoned it. 230

The doing of executive or legislative acts do not affect or extinguish Indian title in the absence of a clear and plain legislative intention to do so. 231 US jurisprudence allows the federal creation of contingent interests in land over which Indian title exists and such interests (the naked fee) do not affect Indian title, let alone extinguish it. 232 Without the prior acquisition of Indian title, government cannot dispose of land subject to unrecognized Indian title under general public lands legislation. 233 To interpret general

230 §2.2(c)(iii) Compensation for extinguishment of Indian title. 231 Thus, Sante Fe 314 US at 347 (Indian title not extinguished by a statutory railroad grant), 348-49 (by land grants to individuals), 351 (by a surveyor’s report), 353 (by establishing an Indian reservation), 354-56 (by moving Indians off the land to the reservation). 232 §2.1(b)(iii) USA: extinguishment of Indian title. 233 In Lane v Pueblo of Santa Rosa 249 US 110, 113 (1919) the Court prevented the Secretary of the Interior disposing of lands, subject to an Indian title not recognized by treaty, under laws relating to the public lands, on the basis that to do so would be “an act of confiscation”. Similarly in Cramer v US 261 US 219 (1923) it was held that Indian title was not extinguished by a federal land patent under general legislation. The government had issued patents to the Central Pacific Railway Company on the assumption that there was no reservation or encumbrance to prevent the passage of full title to the grantee. The Pueblo asserted an unrecognized Indian title, one claimed by right of occupancy only. As the right of occupancy was not referred to in the grant, it was not terminated by the grant.

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legislation as authorising the extinguishment of Indian title by grant would be contrary to the history of US - Indian land dealings, and contrary to the intent of the legislation.

In US law, titles specifically validated or authorised by legislation are equated to the direct grant of title by legislation. 234 Such legislation might show a clear and plain intention to extinguish native title. However, this proposition is distinct from an argument that the executive grant of an estate in fee simple under general legislation extinguishes Indian title, an argument that has never been accepted by the Supreme Court, even in post Tee Hit Ton jurisprudence with respect to unrecognized Indian title. 235 The effect of a grant under specific legislation is a matter of the intention the empowering legislation, within constitutional constraints. 236

Many Congressional grants of title, rights of way or easements in aid of railway construction were made under specific legislation in the 1800s, and the argument that they were intended to extinguish Indian title was made

234 Marsh v Brooks 55 US 513, 519 (1852) : “A confirmation of a title by act of Congress, not only renders it a legal title, but furnishes higher evidence of that fact than a patent, inasmuch as it is a direct grant of the fee”, citing Strother v Lucas 37 US 410, 437 (1838). Michigan Land & Lumber Co v Rust 168 US 589, 593 (1897): “It is true a patent is not always necessary for the transfer of the legal title. Sometimes an act of congress will pass the fee.” 235 In United States v Atlantic Richfield Co 435 F Supp 1009 (D Alaska 1977) affd 612 F 2d 1132 (9th Cir 1980), the US District Court, in a footnote referring to “a Congressionally authorised conveyance” (1020 fn 45), expressly adopted the Tee Hit Ton distinction between unrecognized Indian title: unrecognized Indian title “as opposed to Indian title recognized by treaty on reservation, is legally extinguishable when the United States makes an otherwise lawful conveyance of land pursuant to federal statute. Congressionally authorised conveyance of lands from the public domain demonstrates the requisite intent to extinguish the Indian right of exclusive use and occupancy to those lands.” ANCSA §4(a) (§1603(a)) provided that the “prior conveyance of public land … shall be regarded as an extinguishment of Aboriginal title thereto, if any … and all Aboriginal titles, if any … are hereby extinguished”. Atlantic Richfield involved a claim that ANCSA did not abrogate claims with respect to trespass that arose prior to its passage. The Court held that the legislative history and terms of ANCSA, which validated past conveyances and provided that they extinguished Indian title, indicated it was intended to “conclusively and finally settle” (1031) all Indian claims, “to extinguish aboriginal title and all claims based on aboriginal title” (1031). The case has been cited in a number of journal articles, none of which cite it for a proposition that “conveyance of lands from the public domain” extinguishes Indian title. For example: (1986) 17 Pacific LJ at 421: ANCSA “retroactively validated selections of land made by the State of Alaska prior to enactment, and was specifically intended to extinguish aboriginal title [footnote Atlantic Richfield]”; 1988 U Toronto LJ at 229: “an express provision in a statute will extinguish Aboriginal title [footnote Atlantic Richfield]”; (1993) 18 American Indian Law Review 458: “However, land claims settlement acts, general or express with regard to extinguishing Indian claims, have been given great weight [footnote Atlantic Richfield]”. 236 Atlantic Richfield formed part of a trilogy of Federal Court cases: Edwardsen v Morton 369 F Supp 1359, 1379 (1973) held that trespass claims accruing before ANCSA was enacted were “vested property rights protected by the Fifth Amendment”. Atlantic Richfield (1977) came to the conclusion that ANCSA extinguished all claims based on aboriginal title, including trespass claims. Inupiat Community v United States 680 F 2d 122 (1982) held that ANCSA extinguishment of trespass claims did not violate the Fifth Amendment.

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and rejected in the two cases cited in Fejo . The cases do not depart from the propositions about Indian title set out in Chapter 2 - Comparative jurisprudence: native title as a property right. The grants in these cases were held not extinguish recognized Indian title at a time when there was no distinction in US jurisprudence between recognized and unrecognized title.

Buttz v Northern Pacific Railroad 119 US 55 (1886)

Buttz was the first of the railroad grant cases to reach the Supreme Court. Congress legislatively granted specified public land to the railroads, but such statutory grants generally acknowledged Indian title, whether or not such title had been recognized by treaty or Act of Congress. However, even when the grants did not acknowledge Indian title, the grants did not extinguish Indian title. 237 The statutory grant in Buttz provided:

The United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of the said Indians, the Indian titles to all lands falling under the operation of this act, and acquired in the donation to the [railroad] named in this bill. 238

The Supreme Court in Buttz held that the title conveyed to the railroad in 1864, and perfected by Indian surrender of the land in 1873, prevailed over a settler’s “pre-emption rights” to the land under a Homestead Act, 239 as “[a]t the time the act of July 2, 1864, was passed the title of the Indian tribes was not extinguished” and so “The [statutory] grant conveyed the fee subject to this right of occupancy. The railroad company took the property with this incumbrance”. 240 The decision in Buttz was later described by the Supreme Court as follows:

In Buttz … the grant operated to convey the fee to the company, subject to the right of occupancy by the Indians, but that the right of the Indians could not be interfered with or determined, except by the United States. 241

237 See footnote 233 with respect to unrecognized title. Where legislation did not expressly extinguish Indian title, Atlantic etc R Co v Mingus 165 US 413, 436-37 (1897) set out the principle: “Indians have proceeded to establish and carry on independent governments of their own … Under these circumstances, it could scarcely by expected that the United States should be called upon to extinguish, for the benefit of a railroad company, which had chosen to locate its route through this territory, a title guarantied to the Indians by solemn treaties.” 238 Act of July 2, 1864, 13 Stat 365, s.2. 239 Buttz v Northern Pacific Railroad 119 US 55, 58: The settler Peronto claimed under the “act of September, 1841, granting pre-emption rights, and the acts amendatory thereof, [including] 'An act to secure homesteads to actual settlers on the public domain” to specified land. 240 Buttz v Northern Pacific Railroad 119 US 55, 66. 241 The summary of the case in Atlantic etc R Co v Mingus 165 US 413, 437 (1897).

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United States, Missouri, Kansas & Texas Railway Co v Roberts 152 US 114 (1894) at 117-118

In United States, Missouri, Kansas & Texas Railway Co a railroad company claimed certain lands conveyed by Congressional grant in aid of railway construction. The lands were also claimed by the Walapais as part of their ancestral land. The Supreme Court held that the company was not entitled to any land which had been historically occupied by the Walapais and had not been voluntarily surrendered.

An Act of Congress, not general legislation, authorised the company to appropriate and use as a right of way land needed for the railway on the Osage reservation. Thus the “title to the land for the 200 feet in width thus granted vested in the company, either upon the passage of the Act of Congress, July 26, 1866, or upon the construction of the road”. 242 However, this title did not extinguish Indian title.

Though the lands of the Indians were reserved by treaty for their occupation, the fee was always under the control of the government; and when transferred, without reference to the possession of the lands, and without designation of any use of them requiring the delivery of their possession, the transfer was subject to their right of occupancy ; and the manner, time, and conditions on which that right should be extinguished were matters for the determination of the government. 243 (emphasis added)

(ii) New Zealand jurisprudence

New Zealand jurisprudence (apart from the Wi Parata years) has recognized Maori title as ownership and therefore held:

The land became subject to the disposing power of the Crown by Crown grant only once customary ownership had been lawfully extinguished. 244

While Maori title was recognized in the Treaty of Waitangi, native title as a common law right did not depend upon such recognition. New Zealand jurisprudence holds unequivocally that Maori title cannot be extinguished by the grant of an estate in fee simple, or other interest, under general legislation. The Native Lands Act set up a process, the very purpose of which was, as clearly indicated in the various preambles to such Acts, to extinguish Maori customary title and replace it with statutory Maori

242 152 US at 117. 243 152 US at 117-118. 244 Ngati Apa at [38] per Elias CJ.

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freehold title. 245 After a determination of customary title by the Native Land Court, statutory grants of an estate in fee simple were made to the Maori owners. The process did not involve the grant of an estate in fee simple to a third party under general legislation.

In 1863 many Maori were in rebellion and all the cases cited in Fejo concern land that was confiscated pursuant to legislative authority. The New Zealand Settlements Act 1863 (NZ) provided for the confiscation by the Crown of lands of Maori whom the Crown assessed to have been in “rebellion”, and empowered the Governor by s 2 to declare districts, and by s 5 to “reserve or take any land within such district and such land shall be deemed to be Crown land, freed and discharged from all title, interest or claim of any person whomsoever.” The Native Lands Act provided the process for the subsequent grant of title to “loyal Maori”.

Te Teira Te Paea v Te Roera Tareha [1902] AC 56, 65

In Te Teira Te Paea v Te Roera Tareha , the plaintiffs claimed that they had been loyal to the Crown when land, including the Kaiwaka block, was “reserved and taken”246 by an 1867 Order in Council under the 1863 Act. Pursuant to an agreement between the Crown and Maori, “certificates of title” 247 over all confiscated blocks were granted to named Maori parties, all blocks having between 13 and 40 named grantees, except for the Kaiwaka block, which only had one name: Te Roera Tareha . The only evidence as to what the agreement intended with respect to the Kaiwaka block was a letter, referred to in the agreement, which the Privy Council held supported the view that “this block was allotted to him [ Te Roera Tareha ] beneficially rather than .. as a trustee for others.” 248 The Te Teira Te Paea claimed the block was held on trust for them, as they were owners under Maori custom. Both the confiscation and agreement were regarded as defective and were validated by the Mohaka and Waikare District Act 1870 (NZ), which provided under s 5, that Crown grants were to be issued in favour of named persons “in fee simple”. 249 The Privy Council concluded that:

The judgement of Supreme Court was based on two grounds…that all lands...were forfeited to the Crown by reason of the

245 Preamble set out in Chapter 2 footnote 81. Ngati Apa [40] per Elias CJ: “The Native Lands and Maori Lands Acts from 1862 until enactment of Te Ture Whenua Maori Act 1993 were a mechanism for converting Maori customary proprietary interests in land into fee simple title, held of the Crown. Only such land could be alienated by the Maori owners to private purchasers. The explicit policy of the legislation was “to encourage the extinction of such proprietary customs and to provide for the conversion of such modes of ownership into titles derived from the Crown” (Preamble to the Native Lands Act 1865).” 246 Te Teira Te Paea, 61 247 Te Teira Te Paea, 65 248 Te Teira Te Paea, 64 249 Te Teira Te Paea, 65

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rebellion…and could be...granted out by it, as it pleased...[and] that the title…to...the lands…must be decided by the terms of the agreement…Their Lordships concur…250

The case determined that native title ceased when the land was forfeited to the Crown. Having come to that conclusion, the block was granted to Te Roera Tareha absolutely, as this was what was intended by the agreement and validating Act. The Privy Council stated at 65:

The terms of the agreement itself shew that the persons to whom lands were granted were to derive their title from the Crown; the Act says the grants were to be to them in fee simple - an expression quite inapplicable to lands held by native custom.

This passage is simply a statement that the language of a grant of an estate in fee simple is not an appropriate expression to describe the grant of land to be held on trust in accordance with Maori custom. As Maori title was extinguished prior to the grant of the fee simple, the passage is not authority for a proposition that the description of a right granted as an estate in “fee simple” is a clear and plain intention, by such language, to thereby extinguish native title.

Manu Kapua v Para Haimona [1913] AC 761, 766-767

Manu Kapua also involved a purported confiscation and grant of Maori land. By an Order in Council under the 1863 Act, it was declared that lands including the Te Akau block should be “set apart and reserved as sites for settlements for colonization”. 251 The Native Land Court subsequently determined there were 77 loyal and 44 rebel Maori (from two tribes/hapu, Tainuis and Tahingas) “interested in the area” 252 under Maori customs, and on the basis of this determination, a Crown grant of Maori freehold title was issued under the 1863 Act to named loyal Maori in 1874. The block was further partitioned in 1894 under the Native Land Court Act 1886 (NZ) in a way that “took no account of any ancient tribal boundary between the two tribes”. 253 Following subsequent enquiries, court decisions and a Royal Commission in connection with the block, the Maori Land Claims Adjustment and Laws Amendment Act 1904 (NZ) conferred direct authority on the Native Appellate Court to determine the "dispute between the native owners as to tribal or hapu boundaries … and to confirm or if necessary amend in accordance with the equities of the case any order heretofore made.” The findings of the Native Appellate Court that the Order in Council did not extinguish the title of the loyal Maori and therefore the grant did not

250 Te Teira Te Paea, 71 251 Manu Kapua v Para Haimona [1913] AC 761 at 761. 252 Manu Kapua at 765. 253 Manu Kapua at 765

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extinguish their title, 254 and re-partitioning the block in accordance with Maori custom, was appealed to the Privy Council, which distinguished Te Teira Te Paea:

In the case relied on, the words of the Order were not “set apart and reserved,” but “reserved and taken,” … Their Lordships are of opinion that the Order in Council of September 2, 1865, did not extinguish the native or other title of any loyal inhabitant. …Prior to the grant and the antecedent proceedings the land in question had been held by the natives under their customs and usages…. 255

The … Native Appellate Court … consider[ed] that the land of the loyal natives was never confiscated under the New Zealand Settlement Acts or the Order in Council of 1865. With this opinion their Lordships have already intimated their agreement…. 256

However at page 766-67 of the judgment the following passage occurs:

The 1894 judgement … proceeded on the assumption that the Crown grant of 1874 had been made without reference to any previous native title or tribal boundary. If the effect of the Order in Council of September 2, 1865, had been to extinguish the title of the loyal natives this might well have been so. But, as their Lordships have already stated, they do not consider that the Order disturbed the rights in the land of the loyal members of the two tribes. It follows that the grant only did what such grants are often used to accomplish in such transactions in New Zealand. It appears simply to have conveyed the legal estate out of the Crown and transformed the native customary title into a freehold title, the relative interests of the grantees remaining equivalent in value and extent to what they were before.

The 1865 Order in Council did not extinguish Maori title. The 1874 Crown grant had converted Maori title to Maori freehold title, but did so without disturbing the relative rights of the Maori. The Native Appellate Court’s order re-determining partition in accordance with “the ancient tribal boundary between the two tribes” was valid. 257

254 The agreed facts before the Privy Council, Manu Kapua at 762, raised only the rights of “any loyal inhabitant” and no discussion of the rights of rebel Maori occurs in the decision. Prior to the Privy Council decision the Maori had sold the land to the Crown. 255 Manu Kapua at 764-65. 256 Manu Kapua at 768-69. 257 Manu Kapua at 770.

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Faulkner v Tauranga District Council [1996] 1 NZLR 357, 365-366

The Privy Council had earlier made clear in Nireaha Tamaki :

Unless there is legislative authority or provisions such as were found in ss 85 and 86 of the Native Land Act 1909, the Executive cannot, for example, extinguish customary title by granting the land to someone other than the customary owners. If it does so the grantee’s interest is taken subject to the customary title. 258

Faulkner involved land held as an estate in fee simple as a result of the Tauranga District Lands Act 1867 (NZ) (“An act to validate certain Proceedings relating to lands in the Tauranga District”). The Act itself provided that certain land was “duly and effectually set apart reserved and taken under the [ New Zealand Settlements Act 1863]”. The effect of the 1867 Act was, therefore, that any defects in prior confiscation in the Tauranga District were validated. The relevant land was then granted as an estate in fee simple under the Native Land Court Act 1886 (NZ) to Maori as Maori freehold title. The issue before the Court was whether the land was truly Maori freehold title and rateable or, in reality, Maori customary land held on trust, and not subject to rates.

Blanchard J began by setting out the law on “extinguishment of customary title”, repeating as part of his judgment the passage from Nireaha Tamaki above. 259 He concluded 260 that Maori title was extinguished by the legislatively validated confiscation, not by the subsequent grant of an estate in fee simple after confiscation:

In this case I find that the Crown extinguished the Crown-recognized customary title when it took the district by statute. 261

The following passage occurs at 365:

… when land is held by way of an estate in fee simple, especially where there is a registered title under the Land Transfer Act , the title must be regarded as one derived from the Crown. It is impossible, I think, to say that such title is merely Crown recognized and continues, so far as the fee simple owners … are concerned, to be held according to custom.

258 Nireaha Tamaki at 578. 259 [1996] 1 NZLR 357, 363. 260 [1996] 1 NZLR 357, 365-66. 261 Faulkner at 366: “In this case I find that the Crown extinguished the Crown-recognized customary title when it took the district by statute…[but the Ohuki block] was later vested back in Maori ownership when the Commissioner [of Tauranga Land] issued certificates [“as to the ownership of the Ohuki block”].

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The judgment then refers to the passage in Te Teira Te Paea v Te Roera Tareha at page 65 discussed earlier, 262 and holds that the land is Maori freehold title, land held under Crown grant, and is rateable.

The New Zealand cases simply affirm that legislation enacted to convert Maori customary title to Maori freehold title has that effect, and the description of Maori freehold title as an estate in fee simple held from the Crown is an expression that is "inapplicable" to describe land held by Maori custom.

(iii) Privy Council (west African) jurisprudence

Notwithstanding the Privy Council jurisprudence on appeals from New Zealand, Privy Council cases from Lagos, and later Nigeria, have always held that, under the introduced English law in that colony, grants of fee simple convey a title to be held in trust in accordance with rights under traditional law, rather than convey an estate in fee simple to the person named. 263 Sakariyawo Oshodi v Moriamo Dakolo 264 merely confirmed this. In Nigeria, traditional law is a direct source of law.265

The appeal in Sakariyawo Oshodi related to the respective rights of the appellant and respondents to compensation to be awarded in respect of the acquisition of land under the Public Lands Acquisition Ordinance 1923 (Nigeria). A grant of an estate in fee simple had been made to a headman placed in charge of the compound. The respondents were occupiers of the compound and the appellant was the paramount chief. Neither the appellant nor the respondents were named in the grant, thought both were held to have rights in the land under custom and both were entitled to compensation, as the grant did not affect the respective rights of the chief and the occupants to compensation. The Privy Council stated at 670:

One other matter here must be mentioned. … It was the custom to put a headman in charge of each of the compounds, and when Government grants came to be issued the headmen were encouraged to get a Government grant. It has, however, been decided, and their Lordships have no intention of interfering with this decision, that grants given in such circumstances were really only grants in trust, and indeed left the property exactly as it was . This is a peculiar result. In

262 Faulkner at 366. 263 Berriedale Keith A, “Land Tenure in Nigeria” (1912) 43 J Royal African Soc 325; Meek CK op cit; Amodu Tijani; Sunmonu v Disu Raphael [1927] AC 881, 884-885; Idewa Inasa v Sakarivawa Oshodi [1934] AC 99, 101; Adeyinka Oyekan v Musendiku Adele; Oshodi v Balogun [1936] 2 All ER 1632 (citing headnote: “The grant of a customary right to land to B, in the form of a grant of an estate in fee simple, did not permit B to transfer a fee simple title in the property without the consent required by custom.”) 264 Sakariyawo Oshodi v Moriamo Dakolo [1930] AC 667. 265 Chapter 4 footnote 106.

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truth Government grants are in their form inconsistent with the whole idea of native rights. They point to a transition state, but it is for legislation and not for the Board to bring to an end such a peculiar state of affairs as regards title. But the result in this case is not doubtful. It makes it impossible for the respondents either to improve their own position or detract from that of the plaintiff by pointing to the Government grant in favour of [the headmen] Okilu. (Emphasis added)

The Privy Council is stating that a Crown grant, being in the form the grant of rights from the Crown to one holder of rights under traditional law, is “inconsistent with the whole idea of native rights”, because traditional rights are not acknowledged in the grant. However, the law and practice of the jurisdiction indicate that the grant is a device meant to acknowledge rights under traditional law rather than extinguish them: “This is a peculiar result”, but it is the established law. The court had open two possibilities: the grant to one traditional right holder extinguished all other traditional rights (the approach rejected), or the grant was seen as a mere conveyancing device, not simply leaving undisturbed traditional rights, but protecting those rights under English law, notwithstanding the use of “inapplicable” or inappropriate language (the approach adopted). The case does not stand for the extinguishment of native title by grant, or the replacement of traditional rights with rights under English law, as such conclusions were not the clear and plain intention of the relevant legislation. In jurisdictions where traditional laws and customs are a direct source of law, grants are construed to reflect such law.

(iv) Canadian jurisprudence

It is only in Canadian jurisprudence that the argument that the grant of an estate in fee simple under general legislation to a third party extinguishes native title has not been unambiguously rejected. Uncertainty about the relationship between the Crown grant of an estate in fee simple and native title was indicated in the Federal Court decision of Baker Lake .

Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513, 549

In Baker Lake , Mahoney J stated that the grant of a Royal Charter which included a grant “in free and common Socage” 266 of the relevant land to the Hudson Bay Company was not intended to extinguish Aboriginal title, as this was effected “by cession or sword” rather than “the incidents of a title peculiar to English law”.267 The purpose of the grant “was intended solely

266 Baker Lake at 547: “in free and common Socage … YIELDING AND PAYING yearly to us two Elkes and two Black beavers”. 267 Baker Lake at 548.

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to define its [the grantees] ownership of the land in relation to the Crown, not to extinguish the aboriginal title”.268 All this seems clear. However the following passage, referred to in Fejo , occurs at page 549:

The coexistence of an aboriginal title with the estate of the ordinary private land holder is readily recognized as an absurdity. 269

As no issue of granting an estate in fee simple arose in the case, this passage is obiter dicta . The passage indicates a problem to be solved, not a solution. Canadian courts are yet to rule on whether the Crown can grant an interest in land while Aboriginal title exists over that land. 270

Delgamuukw BCCA

Fejo refers to the decision of the British Columbia Court of Appeal. In Delgamuukw , McEachern CJ, at first instance, held that British Columbian Colonial Ordinances in 1858 authorizing the Crown to grant fee simple title to third parties implicitly extinguished all Aboriginal title. He started from the proposition, citing St Catherine’s Milling , that native title is “personal and usufructuary” dependent upon the good will of the Sovereign. 271 Native title was extinguished because: “the Crown with full knowledge of the local situation fully intended to settle the colony and to grant titles and tenures unburdened by any aboriginal interests”. 272

Moreover, this intention to extinguish did not only apply to lands that had actually been granted to third parties, but rather all Crown land in British Columbia. 273

No Justice in the Court of Appeal nor in the Supreme Court, agreed with either of these propositions. In the Court of Appeal (decided before Fejo ) the argument that general legislation, or the grant of an estate in fee simple under general legislation, was intended to extinguish native title was rejected. 274 Additionally, some judges rejected the proposition that an estate

268 Baker Lake at 549. 269 Baker Lake at 549 270 In Aboriginal title cases, First Nations have not generally asserted claims over lands owned in fee simple by third parties. They have sought compensation from the Crown for wrongfully granting those lands to third parties. In Skeetchestn Indian Band and Secwepemc Aboriginal Nation v Registrar of Land Titles, Kamloops [2000] BCCA 525 the BC Court of Appeal held that a claim of aboriginal title was not a claim for “an estate or interest in land” that was registrable under the Land Title Act, RSBC 1996, c250. At [5] Southin J noted: “Sooner or later, the question of whether those who hold certificates of indefeasible title … are subject to claims of aboriginal right must be decided.”. 271 Set out in Delgamuukw at [17]. 272 Set out in Delgamuukw at [24]. 273 Set out in Delgamuukw at [24]. 274 McFarlane JA in Delgamuukw BCCA (1993) 104 DLR (4 th ) 470 held that the plaintiffs' aboriginal rights were not extinguished by the colonial instruments enacted prior to British

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in fee simple was necessarily inconsistent with native title. 275 The relevant argument was set out by McFarlane JA:

That is, if priority were to be given to a fee simple title over an aboriginal title, by the application of an appropriate legal principle about priorities , then the fee simple title may extinguish the aboriginal title of exclusive occupancy in the same land …276 (emphasis added)

However, this argument did not have to be considered for various reasons, including his view that the Provincial Crown lacked constitutional power to extinguish native. Subsequently to Fejo , Lamer CJ, speaking for the Supreme Court, affirmed the need for a clear and plain intention in Delgamuukw :

I have come to the conclusion that a provincial law of general application could not have this effect [extinguish native title], for two reasons. First, a law of general application cannot, by definition, meet the standard which has been set by this Court for the extinguishment of aboriginal rights without being ultra vires the province. That standard was laid down in Sparrow , supra , at p. 1099, as one of “clear and plain” intent. In that decision, the Court drew a distinction between laws which extinguished aboriginal rights, and those which merely regulated them. Although the latter types of laws may have been “necessarily inconsistent” with the continued exercise of aboriginal rights, they could not extinguish those rights. While the requirement of clear and plain intent does not, perhaps, require that the Crown “use language which refers expressly to its extinguishment of aboriginal rights” ( Gladstone , [R v Gladstone [1996] 2 SCR 723] supra , at para. 34), the standard is still quite high. My concern is that the only laws with the sufficiently clear and plain intention to extinguish aboriginal rights would be laws in relation to Indians and Indian lands. 277

Columbia's entry into Confederation in 1871, and held that the province did not have the power after 1871 to extinguish aboriginal rights. Wallace JA agreed with Macfarlane JA; Lambert JA (diss) at 312 held that in the case of an inconsistency between a Crown grant of land and aboriginal title, aboriginal title should not necessarily give way in the absence of a clear and plain intention to extinguish it. Hutcheon JA (diss in part) held that colonial enactments did not extinguish aboriginal rights and found it unnecessary to decide whether a grant in fee simple extinguishes aboriginal title or whether a right to compensation arises in such circumstances. 275 McFarlane JA in Delgamuukw BCCA (1993) 104 DLR (4 th ) 470 at 532: “The fact that an Indian people have an aboriginal title to the occupancy, possession, use and enjoyment of a parcel of land is not necessarily inconsistent with the holding of a fee simple title to the same land by someone else, unless either party decides to try to exclude the other.” 276 McFarlane JA in Delgamuukw BCCA (1993) 104 DLR (4 th ) 470 at 532. 277 Delgamuukw at [180] per Lamer CJ.

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Aboriginal use-rights not extinguished by grant of an estate in fee simple

In Canadian jurisprudence, Aboriginal use-rights have been held not to be necessarily extinguished by the grant of an estate in fee simple. In R v Badger 278 the Supreme Court held that an Aboriginal right to hunt on land, which had been confirmed by treaty, was not extinguished by a pre-1982 grant of an estate in fee simple over the land. The two rights with respect to land could co-exist to the extent that the grantee was not putting the lands to a use that was incompatible with hunting. Treaty No. 8 had recognised a right to hunt on land not “taken up” and the court accepted that the Indians would have understood this to mean that there must be some physical evidence of land use. Badger can be explained in terms of a lack of any inconsistency for rights. Access to land held under an estate in fee simple to practise aboriginal rights as opposed to treaty rights, was considered in R v Alphonse.279 That case concerned a prosecution for hunting out of season. The accused alleged that he was exercising an aboriginal right at the time. Macfarlane JA concluded that if the relevant legislation did not restrict the aboriginal rights in question, then those rights could be exercised on private land without the consent of the owner:

Applying the Trespass Act to the circumstances of this case, there was no prohibition with respect to hunting on the lands in question. That being so, it was not unlawful to hunt on those lands. Thus, it was not unlawful to exercise an aboriginal right on those lands. 280

Alphonse more directly raises the issue of extinguishment of native title use rights by the grant of an estate in fee simple. The grant did not make unlawful an activity that fell with the native title right. However, the court did not expressly determine whether the mere presence of native title holders on land subject to an estate in fee simple would be trespass against the holder of the estate in fee simple. But whatever rights the holder of the estate in fee simple might have against the native title holders, the right against the world of native title holders to use the land for hunting was not extinguished. Badger and Alphonse indicate, for different reasons, that Aboriginal rights may be exercised on land over which an estate in fee simple has been granted. Similarly in Hunt 281 and Harper Ranch, 282 the BC

278 R v Badger [1996] 1 SCR 771. 279 R v Alphonse (1993) 80 BCLR (2d) 17 (CA). 280 R v Alphonse at [34]. 281 Hunt v Halcan Log Services Ltd [1987] 4 CNLR 63. Each of the parties sought an interlocutory injunction to stop the other from interfering with proprietary and other rights to Deer Island. The Kwakiutl Indian Band sought an injunction to restrain Halcan from logging on the Island until the trial of asserted aboriginal and treaty rights to the land. Halcan sought to restrain the Indian band members from trespassing or obstructing Halcan's access to the land they had purchased. They asserted ownership in fee simple and also a permit to log issued by the Ministry of Lands and Forests. 282 Jules v Harper Ranch Ltd [1989] 3 CNLR 67 raised similar issues.

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Supreme Court granted injunctions, on the basis of the need to protect an asserted Aboriginal right, to restrain infringement of that right by logging that was carried out by the fee simple owners of the land, on the basis that the grant of an estate in fee simple did not necessarily extinguish native title. The cases were subsequently settled.

A conclusion on Canadian jurisprudence

Canadian jurisprudence holds that before the Crown grants interests in land, it must acquire Aboriginal title, and the failure to acquire Aboriginal title first, makes the subsequent Crown grant voidable. 283 Canadian jurisprudence has not adopted propositions inconsistent with that approach.

(f) Effect of the Racial Discrimination Act on grants of estates in fee simple

The statutory guarantee of equality before the law in s.10 of the RDA 284 applies with respect to the right “to own and inherit property (including a human right to be immune from arbitrary deprivation of property)”, 285 and the operation of s.10 is twofold:

• Where a State or territory law extinguishes only native title and leaves other titles intact, the discriminatory extinguishment is removed because the State or territory law is rendered invalid by s.109 of the Constitution;286 • Where a State or territory law provides for the extinguishment of land titles but provides for compensation only in respect of non-native title, while the extinguishment remains valid, a right to compensation is provided to native title holders. 287

Mabo 1 held that the provisions of RDA were “an important restraint upon State or Territory legislative power to extinguish or diminish common law native title”. 288 The decision in Mabo was that at common law, the Crown grant of rights under Crown lands legislation can extinguish all property rights, including those created by prior Crown grant, but there is a

283 §6.1(b) (iv) Canadian jurisprudence: Crown must have title before grant. 284 Set out at §3.3(b) Denial of native title as a denial of the right to enjoy property contrary to the guarantee of equality before the law in the RDA . 285 Mabo 1 at 217; similarly Ward at [119] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 286 Ward at [108] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: The “State law, for example, extinguishes only native title and leaves other titles intact … the discriminatory burden of extinguishment is removed because the operation of the State law is rendered invalid by s 109 of the Constitution.” 287 Ibid: “a State law, for example, provides for the extinguishment of land titles but provides for compensation only in respect of non-native title… whilst the extinguishment remains valid, there is …a right to compensation provided to native title holders”. 288 Mabo at 112 Deane and Gaudron JJ.

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presumption against derogation of property rights, limited to property rights derived from prior Crown grant (and according to Fejo all non-native title rights are presumed to derive from Crown grant), and therefore a Crown grant under Crown lands legislation extinguishes only the rights of native title holders. But this common law principle with respect to the interpretation of grants under statutory authority is modified by the RDA because the common law principle is discriminatory in singling out native title and invidiously distinguishing native title from other property rights. The effect of the Mabo reasoning is that common law doctrine can single out native title and accord it a lesser level of protection to that accorded other property rights. The common law can deny substantive equality before the law to native title. In Mabo 1 the same outcome (lesser protection), which flowed from the legislative extinguishment of native title under State law, as opposed to the common law extinguishment of native title, was held to be invalid. Mabo 1 held that the effect of the Queensland Coast Islands Declaratory Act 1985 was to extinguish only native title rights, leaving other property rights unaffected , arbitrarily depriving only native title holders of their property rights. If State legislation enables the grant of an interest in land that extinguishes only native title rights, but not non-native title rights, that is discrimination:

If a law of a State provides that property held by members of the community generally may not be expropriated except for prescribed purposes or on prescribed conditions (including the payment of compensation), a State law which purports to authorize expropriation of property characteristically held by the “persons of a particular race” for purposes additional to those generally justifying expropriation or on less stringent conditions (including lesser compensation) is inconsistent with s 10 of the Racial Discrimination Act .289

As explained in Ward , RDA protection would arise where a “State law provided for differential treatment of land holding according to race”, 290 and native title “characteristically is held by members of a particular race”. 291 It did not matter whether or not the “native title rights and interests amount to rights of ownership equivalent to the rights of ownership enjoyed by others”. 292 The RDA prohibits a denial of substantive equality before the law to native title.

289 Native Title Act Case at 437. 290 Ward at [113] per Gleeson CJ, Gaudron, Gummow and Hayne JJ . 291 Ward at [117] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “It is because native title characteristically is held by members of a particular race that interference with the enjoyment of native title is capable of amounting to discrimination on the basis of race, colour, or national or ethnic origin”. 292 Ward at [118] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: see at §3.3(b) Denial of native title as a denial of the right to enjoy property contrary to the guarantee of equality before the law in the RDA .

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(g) Conclusion

While there is no doubt that rights under a Crown grant may be inconsistent with native title rights, and that the idea of two competing rights of exclusive possession to land is an absurdity, the fact of inconsistency does not determine the legal relationship between two rights. The issue is resolved by “an appropriate legal principle about priorities”.

Allodial title is a right of dominium against the whole world. The grant of an estate in fee simple removes rights of dominium from the Crown’s allodial title (fictional under English law and actual under colonial law) and explains why the Crown cannot grant a further estate in fee simple over that land. The doctrine of allodial title also explains why a common law estate in fee simple is a right against the world. The Crown as source of title, and the doctrines of tenure and estates, explain why the grant of an estate in fee simple is good against the Crown. However, the validity of a claim of right by a Crown grantee against all except a person with a better relative title, or the true owner, does not determine the validity of the grantee’s claims as against those with a better relative title or the true owner. As against native title holders, the Crown has no interest in land, has no better relative title and is not the true owner of the land. True rights in rem under Crown grant can only be asserted if native title property rights have been extinguished. In the absence of the alienation of native title to the Crown, or the extinguishment of native title pursuant to a clear and plain legislative intention, the burden of native title, according to the comparative jurisprudence, has not been removed.

The approach in Australian and comparative jurisprudence, that a clear and plain legislative intention is required to achieve the destruction of property rights, and the approach in the comparative jurisprudence that a clear and plain legislative intention is required to achieve the destruction of native title, does not apply to protect native title, because that is not “the question”, or if that is the question, the common law foster child of native title is not a true common law right or is not true property.

Mere Crown use of land is no longer argued to extinguish native title. However, the search for an appropriate legal principle about priorities in Australian jurisprudence always returns to the bare assertion that the legal relationship between native title rights and other common law rights is determined on the basis that if there is an inconsistency of rights, rights under Crown grant prevail over fragile native title rights. The principle rests on two bases: because native title enters the common law as a compromised form of right and property (as either a fragile right or fragile property), and because there is a newly created common law principle – the destruction of fragile property rights by Crown grant - the intended effect of a Crown grant is the destruction of accrued or vested property rights not

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sourced in Crown grant. Native title is a fragile right because its source is not a Crown grant. The fragility of native title is the priority principle created by Australian jurisprudence. This priority principle is contrary to the statutory guarantee of equality before the law under the RDA and the common law principle of equality before the law. 293 The principle of right recognition set out in the comparative jurisprudence and Mabo – full respect - has not been applied in Australian jurisprudence.

293 §3.3(a) The doctrine of absolute Crown ownership as a denial of the common law principle of equality before the law

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§6.4 Compensation for extinguishment of native title

An obligation to pay compensation for the taking of a property right can arise in two distinct situations. The first is that the taking of property pursuant to legislative provision, or executive act under legislative authority, is presumed to be on the basis that compensation is payable for the taking. The compensation presumption complements the presumption against legislative taking of property without a clear and plain intention. 294 The second is that where a property right has been wrongfully infringed or taken, the appropriate remedy for that wrong may be an award of compensation, rather than a remedy to regain possession, such as ejectment or return of the object taken.

It can be accepted that native title as a right to use and control land is a “valuable right”. 295 In Canada, New Zealand and the USA, the taking of native title by agreement or compulsory acquisition has involved the payment of compensation. In court decisions determining the quantum of compensation, the value of native title has generally been equated to the value of freehold title over land: “full ownership”296 or a “fee simple”. 297 It is not possible here to examine what are the appropriate principles for calculating the quantum of compensation or damages for taking native title, to the extent that such principles should provide full respect to indigenous perspectives in terms of the loss suffered. 298

(a) Presumption to compensation for taking property

There is no prerogative power to take land, 299 and legislation will not be presumed to allow the taking of property without the payment of compensation. 300 The taking of a property right without compensation is

294 See §6.2(a) Extinguishment of property rights requires clear and plain intention. 295 Minister of State for the Army v Dalziel (1944) 68 CLR at 290 per Starke J: property “extends to every species of valuable right and interest including real and personal property, incorporeal hereditaments such as rents and services, rights of way, rights of profit or use in land of another, and chooses in action …to acquire any such right is rightly described as an acquisition of property.” 296 Amodu Tijani, 403-404. 297 Geita Sebea v Territory of Papua (1941) 67 CLR 544 at 557 per Williams J. 298 For example, Campbell D, Economic Issues in Valuation of and Compensation for Loss of Native Title Rights (Canberra: AIATSIS, 2000); Litchfield J, “Compensation for Loss and Impairment of Native Title Rights and Interests: An analysis of suggested approaches” (1999) 18 AMPLJ 263 (Part 1). Compensation is “full compensation for what is lost”: Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 311 per Brennan J. 299 Attorney-General v De Keyser’s Royal Hotel [1920] AC 508 at 569: “Since Magna Carta the estate of a subject in lands or buildings has been protected against the prerogative of the Crown.” 300 Pearce and Geddes op cit at [5.17]-[5.19]. Commonwealth v Hazeldell Ltd (1918) 25 CLR 552 at 563: “If this is the law, persons in the position of the respondents may be suddenly and arbitrarily and without compensation dispossessed of valuable rights of property. It is a

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not merely the destruction of vested rights, and not merely the removal of a source of livelihood. Dispossession without compensation involves turning the dispossessed into “mendicants for a place to live. Judged by any civilized standard, such a law is unjust”. 301 It offends the values of Australian law. In Central Control Board v Cannon Brewery Company 302 the issue was whether the board were empowered “to acquire compulsorily the fee simple … without paying compensation therefor beyond such sum as might by an act of grace be awarded to the respondent company”, 303 as the relevant Act and regulations were silent as to compensation.

That canon is this: that an intention to take away the property of a subject without giving to him a legal right to compensation for the loss of it is not to be imputed to the Legislature unless that intention is expressed in unequivocal terms. 304

… though this statute provides for the acquisition of land and business premises, if needed …, it gives no indication whatever as to whether the property taken by the Government authority shall be paid or compensated for, or if paid or compensated for, by whom… On the other hand, it contains not a single clause expressing in any kind of language, clear and unequivocal, or obscure and ambiguous, that the owners of the property acquired are not to be paid or compensated for it. 305

(b) Presumption to compensation for taking native title

The principle of compensation for the taking of property has been applied to the taking of native title in comparative jurisprudence. 306 Lord Denning, speaking for the Privy Council in Adeyinka Oyekan, set out the guiding principle:

The courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected. Whilst, therefore, the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who

settled rule of construction that such an intention cannot be imputed to the Legislature unless expressed in unequivocal terms incapable of any other meaning.” Similarly Attorney- General v De Keyser’s Royal Hotel [1920] AC 508 at 569. 301 Mabo at 29 per Brennan J. 302 Central Control Board v Cannon Brewery Company Ltd [1919] AC 744. 303 Central Control Board at 752. 304 Central Control Board at 752; similarly Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 at 542: “unless the words of the statute clearly so demand, a statute is not to be construed so as to take away the property of a subject without compensation.”. 305 Central Control Board at 754. 306 §2.2(c) Compensation for extinguishment of native title.

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has by native law an interest in it: and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law. 307

Australian jurisprudence is unique in holding that the above principle does not apply to the total or partial extinguishment of native title.

(c) Damages for interference with property or native title rights

Australian and comparative jurisprudence hold that native title is a legal right protected by common law or statutory remedies against interference. 308 Native title holders may bring actions to protect their rights unless their right of action has been abolished or modified. 309 The remedy determines the practical meaning of the right. Courts have a wide discretion to award a remedy “appropriate” to the specific circumstances of a case. 310 Hence in Nireaha Tamaki the Privy Council held that New Zealand courts had jurisdiction to restrain a proposed grant of title to third parties if there had been no prior acquisition of Maori title.311 A dispossessed holder of title may recover possession. Where a trespasser builds a structure on the land of a person with better relative title, the holder of the better title can eject the trespasser or seek damages, and can enforce the removal of the offending structure or retain it. 312

The remedy of damages focuses on the loss to the wronged party, 313 while restitution focuses on the gain to the doer of the wrong. The concept of

307 (1957) 1 WLR 876 at 880. 308 Mabo at 113 per Deane and Gaudron JJ: “true legal rights … protected and enforced by proceedings in the ordinary courts” 309 Ngati Apa [41] per Elias CJ: “From the enactment of the Native Lands Act 1909, Maori owners have been prevented from taking action in the courts for recovery of possession of customary land or to prevent or claim damages for trespass to such land ( Native Land Act 1909 (NZ) s88; Te Ture Whenua Maori Act 1993 (NZ) s144). Only the Crown can bring such proceedings to court on behalf of the beneficial owners. In such proceedings, the land is “deemed” to be Crown land within the meaning of the Land Act 1948. For present purposes, the fact that such deeming for limited purposes is necessary emphasises that customary land is property recognised by New Zealand law which is not owned by the Crown.” 310 Giumelli v Giumelli (1999) 196 CLR 101 at [10]: “At the heart of this appeal is the question whether the relief granted by the Full Court was appropriate”; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 125–126 (Deane J) 311 Nireaha Tamaki at 575: “Their Lordships hold that an aggrieved person may sue an officer of the Crown to restrain a threatened act purporting to be done in supposed pursuance of an Act of Parliament, but really outside the statutory authority.” 312 Brand v Chris Building Society [1957] VR 625. 313 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39, per Lord Blackburn: “where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.” Similarly Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64.

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“compensatory damages” is normally confined to situations where the wrong does not result in any unjust enrichment to the wrongdoer, or where the wronged party does not seek recovery of the enrichment. Remedies awarded for interference with Aboriginal title include damages, and claims for damages have generally been settled, courts dealing only with challenges to the right to bring the action for damages. 314 An award of damages was taken to be the appropriate remedy in Chippewas of Sarnia :

As we have concluded that there was no proper surrender [to the Crown]…the issue becomes whether, on the facts of this case, the Chippewas are entitled to the remedies they seek, namely, a declaration that the Cameron patent is void and a declaration that they are entitled to possession of the disputed lands. …

…. the Chippewas assert a claim to a property right against the private citizens who are the present occupiers of the property, invoking the legal principles governing the reconciliation of competing claims to private property. ….

As we have already noted, the issue of the Chippewas’ right to damages against the Crown for breach of its aboriginal rights is not before us … and it was common ground that it would proceed to trial. Accordingly, we confine our attention to the Chippewas’ claim for a remedy related to the return of the lands themselves and we do so on the basis that the Chippewas have a right of action against the Crown for damages. 315

In the exercise of its remedial discretion the court declined to make the declarations sought. 316

Australian jurisprudence is unique in holding, prior to Ward , that an act of land use that would be a wrongful interference with native title rights giving rise to a remedy such as damages if done by a subject, would, if done by the Crown, not only be valid, but would extinguish native title. 317

314 Stoney Creek Indian Band v Alcan Aluminum [1999] 1 CNLR 192 involved applicants seeking various remedies including damages for trespass, trial Judge holding that the action was not statute-barred. 315 Chippewas of Sarnia at [243]-[247]. 316 Chippewas of Sarnia at [305]: “For these reasons, we conclude that established rules governing the availability of public and private law remedies require the court to take into consideration the Chippewas’ delay in asserting its claim and the reliance of innocent third parties on the apparent validity of the Cameron patent. On the facts of this case, it is our view that the Chippewas’ delay, combined with the reliance of the landowners, is fatal to the claims asserted by the Chippewas.” 317 §6.3(a) Crown use of land does not extinguish native title.

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(d) Comparative jurisprudence: a right to compensation for the extinguishment of native title

Government policy in Canada, New Zealand and the USA has been to accept a right to compensation and to settle claims for compensation or damages with respect to the loss of native title, or loss of Aboriginal rights (especially fishing rights) including claims arising from the interference with such rights, by various forms of comprehensive settlement not based on traditional legal structures and not determining the common law rights of native title holders over the relevant resources. 318

(i) New Zealand

The payment of compensation or making of compensation agreements for the infringement or taking of Maori title or Maori rights, including all land confiscations and orders of the Native Land Court converting Maori customary title into statutory alienable Maori freehold title, is government policy in New Zealand. 319

(ii) Canada

Payment of compensation for the legislative infringement or taking Aboriginal title or Aboriginal rights is required to make such actions lawful as a result of the Constitution Act 1982 (Can). 320 Prior to 1982, the “general principle” was that “existing aboriginal interests in the lands …even though those interests might not be of a type recognized by British law …were to be removed only by solemn treaty with due compensation”. 321 No case in Canada has held that Aboriginal rights or title could be taken without compensation at common law, or by legislation that did not manifest a clear and plain intention to this effect.

318 New Zealand: see §2.2(c)(i) Compensation for extinguishment of Maori title; Canada: for example, following the 1973 and 1986 Comprehensive Land Claims Policy, agreements include James Bay and Northern Quebec Agreement (1975); Inuvialuit Final Agreement (1984); Nunavut Land Claims Agreement (1993); Nisga’a Agreement (2000); Labrador Inuit Agreement (2005) see INAC, General Briefing Note on the Comprehensive Land Claims Policy of Canada (March 2007) http://www.ainc-inac.gc.ca/ps/clm/gbn/index_e.html . US: ANCSA, see footnote 235; similarly Maine Indian Claims Settlement Act 1980, 25 USC §§ 1721-1735; The largest remaining claim is the Oneida claim. Newton op cit at 257-58 notes: With respect to “states [which] had purchased tribal land in violation of … the Nonintercourse Act… [Indian title] claims …continue to cloud the titles of landholders in the affected areas.” 319 §2.2(c)(i) Compensation for extinguishment of Maori title 320 §2.2(c)(ii) Compensation for extinguishment of Aboriginal title 321 Van der Peet at [275] per McLachlin J (diss). Delgamuukw per La Forest at [203]: “Indeed, the treatment of “aboriginal title” as a compensable right can be traced back to the Royal Proclamation“.

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(iii) US jurisprudence

In US jurisprudence the extinguishment of recognised and unrecognized Indian title requires the payment of compensation either under general law or because Indian title is “property” under the Constitution. 322

(e) Australian jurisprudence: no presumption to compensation for the extinguishment of native title

Australian law acknowledges that native title is a right protected by common law and statutory remedies, but holds that prior to the RDA the Crown can interfere with or take native title rights pursuant to legislative acts, or executive acts under the authority of legislation, without a right to compensation arising as a matter of legislative presumption.

(i) Mabo 1: a presumption to compensation affirmed

It was said in Mabo 1 by Deane J:

If the [ Queensland Coast Islands Declaratory Act 1985 (Qld)] Act did have that effect, its operation would be to compulsorily deprive the plaintiffs and those whom they represent, without compensation, of all traditional personal and communal proprietary rights and interests to and in their ancestral homelands. The general provisions of the Act should not, as a matter of settled principles of construction, be construed as intended to bring about such a compulsory deprivation of proprietary rights and interests without compensation if they are susceptible of some other and less burdensome construction. 323

This approach was applied by a minority in Mabo : Deane and Gaudron JJ and Toohey J.

(ii) Mabo 2: a presumption to compensation denied

As the High Court noted in the Native Title Act Case , it is somewhat artificial to look for any intention with respect to the effect of legislation on native title in Crown lands legislation when “Aborigines and their title to land were ignored”. 324 Accordingly, where there is no indication as to the effect of any grant of right on native title, the legislative presumption

322 §2.2(c)(iii) Compensation for extinguishment of Indian title. 323 Mabo 1 at 223 per Deane J. 324 Native Title Act Case at 433 per Mason CJ, Brennan, Deane, Gaudron, Toohey, McHugh JJ.

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would be that compensation is payable. 325 However, the High Court majority in Mabo ( Mabo 2) came to a different conclusion. On Mer, it had been occasional Queensland government policy to pay for the taking of land from the Meriam people. 326

Deane and Gaudron JJ: a presumption to compensation

In Mabo Deane and Gaudron JJ held that:

The ordinary rules of statutory interpretation require, however, that clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation. 327

It followed that:

If lands in relation to which such title [native title] exists are clearly included within the ambit of such legislation… the power of the Crown wrongfully to extinguish the native title by inconsistent grant will remain but any liability of the Crown to pay compensatory damages for such wrongful extinguishment will be unaffected. 328

The propositions set out by Deane and Gaudron JJ are clear: a presumption to compensation for the extinguishment of native title.

Toohey J: a presumption to compensation

As Toohey J declined to find that any native title had been extinguished, 329 no issue of compensation arose. However, Toohey J applied the principle set out Central Control Board to hold that a presumption to pay compensation applied to the extinguishment of native title. 330

325 Similarly Wik at 248 per Kirby J: “Although the legislators in 1910 and 1962 did not know of the existence of native title, it should be presumed that, had they known, Parliament would have acted to protect such rights against uncompensated expropriation.” 326 Noted in Mabo at 126-127 by Dawson J. 327 Mabo at 110-111 per Deane and Gaudron JJ. In Wik at 155 Gaudron J maintained this view: “As Deane J and I explained in Mabo the rule ..is simply a manifestation of the general and well settled rule of statutory construction which requires that “clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation”. 328 Mabo at 111 per Deane and Gaudron JJ. 329 Mabo at 196-97 per Toohey J: “Whether that lease was effective to extinguish the traditional title of the Meriam people to Dauer and Waier, again is a question the Court was not asked to answer and no relief is claimed in regard to that transaction. In those circumstances it is unnecessary to say more about the lease”. 330 Mabo at 195 per Toohey J quoting from Central Control Board set out in footnote 304.

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Mason CJ, Brennan J, McHugh J, Dawson J: no presumption to compensation

Mason CJ and McHugh J

The specific finding in Mabo with respect to compensation was that of Mason CJ and McHugh J:

The main difference between those members of the Court who constitute the majority is that, subject to the operation of Racial Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect of the case since his Honour considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown. 331

Mason CJ and McHugh J did not explain how they came to this conclusion, and nowhere in his judgment did Brennan J state that compensation was not required to be paid with respect to the pre-RDA extinguishment of native title, although he agreed with the summary. The summary is a rejection of both a legislative presumption of compensation and a right to damages for wrongful taking.

Dawson J

Dawson J considered that as native title was a permissive occupancy there was “no general proposition …that the Crown is legally bound to pay compensation for the compulsory acquisition of land or any interests in it by the exercise of sovereign rights.” 332

Brennan J

In querying the theory of the Crown as absolute beneficial owner of all land, Brennan J also queried the proposition that:

331 Mabo at 15 per Mason CJ and McHugh J. 332 Mabo at 126-127 Dawson J held that payments which had been made for “transactions … variously referred to as a “sale”, a “disposal”, an “acquisition” or a “purchase” … were made … for the loss of use of the land rather than for the acquisition of any rights …In my view there was no legal obligation to give such compensation and the giving of it is explicable on the grounds that it was desirable to avoid ill-feeling …[even though] on occasions land on the Murray Islands has been referred to as being “owned” by or “belonging to” the native inhabitants and .. in one instance land was … “resumed”.”

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the common law itself took from indigenous inhabitants any right to occupy their traditional land …[and] vested the land effectively in the control of the Imperial authorities without any right to compensation and made the indigenous inhabitants intruders in their own homes and mendicants for a place to live. Judged by any civilized standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned. 333 ( emphasis added )

In the above passage, Brennan J is indicating only that vesting the land in the Crown without the payment of compensation is unjust. However, there is nothing to distinguish this proposition from a proposition that vesting the land in a third party, extinguishing native title without payment of compensation, is also unjust.

(iii) The extinguishment of native title as the Crown acquisition of a right

Brennan J otherwise made no finding concerning a right to compensation or compensatory damages. The only meaningful discussion of compensation by Brennan J is that which appears in the Mabo summary. However, Brennan J referred to case law which required compensation to be paid for the extinguishment of the native title, quoting the guiding principle in Adeyinka Oyekan , that when the Crown makes “laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded”, 334 saying that “We are not concerned here with compensation for expropriation but we are concerned with the survival of private rights and interests in land and their liability to be extinguished by action of the Crown”. 335 Brennan J used the word “expropriation” on only one other occasion in Mabo , similarly as a description of the acquisition of property or ownership. 336

The clear implication of Brennan J’s distinction between “expropriation” and “extinguishment” is that the extinguishment of native title is not the acquisition of property or ownership by the Crown. The logic of this proposition is consistent with a Crown grant conferring “ownership” on the grantee, but no property rights on the Crown. However, comparative

333 Mabo at 12 per Brennan J. Brennan J at 56-57 and Deane and Gaudron JJ at 82 also cited with approval Lord Denning’s “guiding principle” statement in Adeyinka Oyekan v Musendiku Adele. 334 Mabo at 56 per Brennan J cited with approval Lord Denning’s “guiding principle” statement in Adeyinka Oyekan v Musendiku Adele. 335 Mabo at 56 per Brennan J. 336 Mabo at 25 per Brennan J: “If that submission be right, [ie acquisition of allodial title on acquisition of sovereignty] the Queen took the land occupied by Meriam people on 1 August 1879 without their knowing of the expropriation; they were no longer entitled without the consent of the Crown to continue to occupy the land they had occupied for centuries past.”

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native title jurisprudence does not contain a distinction between acquisition and extinguishment of native title, and Australian jurisprudence does not reflect such a distinction with any clarity. The Mabo judgment of Brennan J reflected two contradictory notions not then resolved by the High Court majority: full respect for native title as communal “ownership” (raising the issue of Crown acquisition of ownership and communal loss of ownership 337 ), and the fragility of native title, not Brennan J’s expression but exemplified by his proposition that native title ownership could be extinguished by mere Crown use of land.

In Mabo Deane and Gaudron JJ 338 accepted that the extinguishment of native title resulted in the transfer of a “right” to the Crown, and held that extinguishment of native title, if done by the Commonwealth Crown, would an acquisition of “property” under the Constitution. 339

In Mabo Toohey J also equated the extinguishment of native title to the taking of property. Having found no extinguishment Toohey J added in obiter dicta that the RDA required the payment of compensation for the compulsory acquisition of native title. His reasoning was that compulsory acquisition legislation empowered the acquisition of property only on just terms or other like phrase, and the effect of the RDA was to extend this statutory right to compensation to the acquisition of native title. A “law” which “purported to achieve” the “extinguishment of the traditional title of the Meriam people without the compensation provided for in the Acquisition of Land Act 1967 (Q)” would “offend s10(1)” of the RDA and would be invalid. 340 The effect of the RDA was that after 31 October 1975, Crown lands legislation, to the extent that it permitted the grant of an estate that extinguished native title without compensation, was invalid.

Subsequently in Ward the joint majority endorsed the proposition that post- RDA , compensation was payable for the extinguishment of native title. 341

337 The Wik majority and the Fejo joint majority avoided discussion of whether the valid extinguishment of native title resulted in the Crown owning the land: see §6.1(e) Avoiding the ownership debate. 338 In Mabo at 78, 94 and 97 Deane and Gaudron JJ three times distinguish “expropriation of property or extinguishment of rights”, holding ultimately at 111 that any legislative extinguishment of those rights would constitute “an expropriation of property to the benefit of the underlying estate for the purposes of s.51(xxxi)” 339 Section 51(xxxi) of the Constitution confers legislative power on the Commonwealth Parliament to make laws for “The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws”. 340 Mabo at 216 per Toohey J. 341 Ward at [124] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “Finally, the legislation may attract s.10 (1) of the RDA because it purports on its face to extinguish native title without compensation or on less stringent conditions (including lesser compensation) than those which govern the expropriation of the property of the people of another race.” Specifically at [126]: “In other cases, involving different legislation, it will be appropriate to compare the effect of that legislation upon native title holders with the effect on other title

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However, while quoting Toohey J’s judgment in Mabo , their reasoning did not express a view on whether the extinguishment of native title was the acquisition of property. The Native Title Act provides that with respect to acts occurring before 31 October 1975, no compensation is payable for the extinguishment of native title, by reason of the Native Title Act , leaving the matter to the common law, but with respect to acts occurring after 31 October 1975, compensation on “just terms for any loss, diminution, impairment or other effect of the act on their native title rights and interests” 342 is payable. 343

(f) Conclusion

Australian jurisprudence has rejected the presumption that the legislative extinguishment of the property right of native title is on the basis of payment of compensation, without indicating why. Brennan J seemingly reasons that the extinguishment of native title does not, per se , result in any property or right being transferred to the Crown. But the extinguishment of native perfects the Crown’s title to land. 344 A burden is removed.

To the extent that Australian jurisprudence bases the extinguishment of native title on a denial that native title is a common law right, no issue of compensation for the loss of a “right” arises. Even accepting such reasoning, dispossession of Aboriginal communities was the result of the grant of rights of occupation to others, and Aboriginal communities lost their means of livelihood, even if they had no “right” to such livelihood. It is, of course, impossible to accept that Australian law endorses the non- right approach to native title. It is inconsistent with the values of Australian law or wider conceptions of justice. Alternatively, it may be said that to the extent that Australian jurisprudence bases the extinguishment of native title on the denial of native title as “property”, no issue of compensation for loss of “property” arises. Yet, in the recognition of native title, Australian jurisprudence uses the language of full respect for property rights and sees native title as a common law property right, 345 not as a permissive occupancy enjoyed at the goodwill of the Crown.

In positing native title as a lesser or fragile right, and more particularly as a fragile property right, the basis for the Australian law of extinguishment of native title is laid. Yet the recognition of native title as property simply means that the presumption of a right to compensation for property loss is engaged, in the absence of such legislation or the common law providing

holders. .. However, it may be that the power conferred by the legislation is exercised in a manner that, as a matter of fact, is discriminatory and thereby engages s.10(1)”. 342 Native Title Act s.51(1) 343 Discussed in Bartlett R, Native Title in Australia (2ed Chatswood: LexisNexis, 2004) Chapter 23 Compensation. 344 §6.1(b) Crown must have interests in land before it can grant interests in land 345 §4.4(b) The expression of traditional rights as property.

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any relevant basis to distinguish between property rights. The complete silence by the Mabo majority as to how the presumption to compensation is displaced means that any justification of such displacement is a matter of speculation. Any justification must explain why the extinguishment of only the native title property right, and not other rights of land use or control, does not offend the common law principle of equality before the law.

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CHAPTER 7 - AN OVERALL ASSESSMENT OF THE DENIAL OF FULL RESPECT ______

The task facing every court is the determination of rights, and following that determination, the determination of appropriate remedies if rights have been infringed. The High Court in Mabo determined that native title was a right recognized by Australian law, and that appropriate common law and statutory remedies existed to protect it. However, Australian law has denied full respect to native title as a right, title or as property. Rather than basing the extinguishment of native title on the lawful exercise of authority, Australian jurisprudence has legitimated every exercise of authority over land by the Crown. To do this, Australian jurisprudence has conceptualised native title, not as a form of title or ownership, but as a bundle of property rights, and has declined to equate the property right of native title to other common law property rights. The contradictions underlying the recognition and protection of native title in Australian jurisprudence are explained not by the universal principles of the common law, but by pragmatic considerations.

Neither the acquisition of imperial sovereignty, nor the subsequent enactment of Crown lands legislation, extinguished native title or legally dispossessed Aboriginal people from their lands. The Crown exercised its authority to dispossess Aboriginal people “parcel by parcel”. 1 But on what legal basis did the exercise of this authority rest? It rested on the denial of full respect for native title, a denial encapsulated in a statement unique to Australian jurisprudence:

The strength of native title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. 2

The Crown can extinguish native title by treating land subject to native title as land owned by the Crown, and dealing with the land on that basis. The Crown does not have to acquire ownership by purchase or legislative taking. The property rights of native title holders are extinguished in a way that other property rights are not. The Crown cannot extinguish the property rights of others by treating their land as if the Crown were the owner. A doctrine of extinguishment by Crown grant of only the property rights of native title holders, “singles out” native title holders and denies them equality before the law in the enjoyment of their right to own and inherit property. This difference of treatment is based on the making of an invidious distinction: the treatment of native title, as the common law expression of rights shaped by Aboriginal difference, as a lesser form of property and right.

1 Mabo at 69 per Brennan J. 2 Wik at 84 per Brennan CJ (diss) quoted in Fejo at [44] per Gleeson CJ, Gaudron, McHugh Gummow Hayne and Callinan JJ.

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§7.1 The recognition of native title: English law is modified to become Australian law

In Australia, Canada and New Zealand, on the assertion of sovereignty, English law was introduced and displaced indigenous law as a source of law. In Australia there is only one system of law, and therefore only one system of legal rights. In the American colonies, two systems of law were recognized: indigenous law and English (later American) law, under a doctrine of legal pluralism.

In accordance with colonial constitutional law, English law was “modified” to the extent necessary to make it appropriate to the conditions of the colony, and English law, modified to the extent necessary to recognize native title, became Australian law. The necessary modification was the rejection of the fictional presumption that the Crown had absolute beneficial ownership of all land (allodial title). Under Australian law, Crown title to land had to be proven.

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§7.2 Who owns the land - Aboriginal Communities or the Crown?

The Crown, on the mistaken assumption that it owned the land, exercised authority over the land in two ways: by using land for its own purposes and by allocating rights over land. Because the Crown assumed prior ownership of the land, it did not vest ownership in itself by any express or implied executive or legislative act.

By the assertion of sovereignty, the Crown acquired radical title to colonial territory, an imperfect form of title to land, as it was devoid of proprietary content. Additionally, radical title was burdened by native title. If the Crown did not act to remove the burden of native title, the burden remained.

(a) Comparative jurisprudence: the recognition of Aboriginal ownership and the acquisition of ownership by the Crown

The comparative jurisprudence set out in Chapter 2 - Comparative jurisprudence: native title as a property right has emphasised the proprietary aspects of native title, and established that native title is ownership of land (US and New Zealand jurisprudence) or a title of exclusive possession akin to ownership and comparable to other proprietary interests (Canadian jurisprudence). Native title is a right to the land and to everything on or under the land, a right to control access, a right to exploit land as an economic resource, and a right equal in value to an estate in fee simple. Moreover, whatever the exact nature of the property right of native title was, in New Zealand and Canadian jurisprudence, the Crown could not validly grant interests in land against native title holders, unless native title was first acquired. In US jurisprudence, grants of executory interests could be made prior to the acquisition of native title, but those interests did not affect native title, did not amount to rights against native title holders, and did not confer on grantees rights to access or use the land, until native title was otherwise extinguished by lawful act.

In settler colonies, such as Canada, New Zealand and the American Colonies/USA, the Crown acquired ownership of land by purchase from native title owners, and, exceptionally, by confiscation pursuant to act of war or express legislative authority. What is common to the comparative jurisprudence is that, without the prior acquisition of native title, where the Crown has granted interests with respect to land it did not own, those interests did not amount to rights against native title holders.

(b) Australian jurisprudence: the avoidance of the ownership question

Australian jurisprudence no longer sees native title as a form of ownership, or true title to land, but as a bundle of separable rights, each of which is individually extinguishable. Australian jurisprudence has categorised native title not as a meaningful title to the land, but as a series of fragile property rights.

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Australian jurisprudence does not equate native title to ownership of land, and therefore does not have to explain Aboriginal loss of ownership. However, Australian jurisprudence has never asserted that the Crown is the owner of the land, or has a better relative title to the land than native title holders. In the absence of such an assertion, and in the absence of acts of purchase or legislative acquisition of native title, Australian jurisprudence has sought to avoid application of the common law principle, nemo dat quod non habet (no one can give what he or she does not have) to Crown grants of interests in land, and avoid an explanation of how the Crown was able to grant a perfect title against native title holders, when, as against native title holders, it possessed only an imperfect title, burdened by native title.

Australian law has also developed principles of extinguishment of native title that avoid the ownership question, enabling at first extinguishment of native title by mere Crown use, a proposition since abandoned, and additionally the extinguishment of native title by the Crown grant of rights. Australian jurisprudence frames the loss of native title in a way that does not attempt to justify a loss of ownership. Accordingly, Australian jurisprudence does not expressly espouse what is implicit in that jurisprudence: that a British subject can lawfully lose ownership of land by mere Crown use of the land, and that a British subject can lawfully lose ownership of land when the Crown grants interests in that land to another.

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§7.3 Full Respect as the standard to determine the recognition and extinguishment of native title

Chapter 3 - Full respect: The standard by which to assess the conceptualisation and extinguishment of native title argued that the recognition of native title in Australian jurisprudence is explained by a principle of full respect for pre- existing rights. That principle rested on three bases: sovereignty, the introduction of English law, and the principle of equality before the law.

Sovereignty over the Australian colonies was acquired on the basis that the pre- existing rights of inhabitants would be fully respected, and the proposition of full respect is manifested in the description of native title as a burden on radical title, the sovereign title of the Crown to colonial territory.

On the acquisition of sovereignty, English law, necessarily modified to the conditions of the Australian colonies, was introduced, and became Australian law. This law contained a doctrine - the continuity doctrine - which dictated full respect for pre-existing rights as the common law right of native title. In accordance with the principles of colonial constitutional law, the introduced law was necessarily modified to the extent necessary to remove fictions, assumptions and presumptions inconsistent with the recognition of native title.

Full respect for native title as a “property right” is, according to Mabo , dictated by a common law principle of equality before the law, as well as the statutory principle of equality before the law set out in the RDA .

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§7.4 The jurisprudence of pragmatism: The need to legitimate the Crown exercise of authority creates new principles of destruction of property rights

Given that the “foundation” of Australian land law was changed as a result of the recognition of native title, it would follow that many previous executive or legislative actions, based on this foundational mistake of law, would not have had the effect they were thought to have. The shape of executive or legislative actions by the Crown and parliaments would have been very different if native title had been recognized from sovereignty. The law and practice in other settler colonies indicates that respect for native title as a legal right requires the acquisition of native title by Crown purchase for value, whether or not such transactions amount to truly voluntary agreements or a forced sale, or the taking of native title by executive or legislative act which is clearly and plainly intended to achieve this end.

Prior to Mabo , executive and legislative acts in Australia ignored native title, not due to inadvertence, but on the basis that it did not exist. The Crown proceeded to use all land in the Australian Colonies as if it were the true owner, to regularise the squatting of non-Aboriginal subjects on such land, and to grant interests in such land. Mabo and subsequent jurisprudence held that these Crown acts were indeed not only lawful under Australian law, but served to extinguish native title. The Crown’s acts were suggested to be consistent with both the principle that Australian law fully respected native title and the common law principle of equality before the law. There was no need to purchase native title for any consideration, there was no need to seek permission from native title holders, or to have statutory authority, to enter onto land subject to native title and use it for Crown purposes, and there was no need to acquire ownership of land before the Crown proceeded to grant statutory rights of use and occupation to others.

Chapter 6 - The denial of full respect in the extinguishment of native title demonstrated that the Australian law of extinguishment of native title did not source itself in common law principles with respect to the protection or loss of title, ownership or property rights. A new law was created. Given that every executive or legislative act prior to the filing of the claim in Mabo 1 ignored the existence of native title, there could never be an express or implied intention to extinguish native title. There could only be the exercise of authority.

(a) Extinguishment of native title by mere use

By using land itself, the Crown manifested an intention to deal with land as if the Crown were the owner of the land. The mere-use principle legitimised every exercise of Crown authority. The Ward decision in 2002 re-established the understanding of native title denied by the mere-use principle, namely that native title was a legal right.

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(b) Extinguishment of native title by Crown grant

Australian law also contained a principle that the property right of native title was a fragile right and could be lost in a way other property rights could not: by inconsistent Crown grant.

The Australian law of extinguishment of native title does not accord with the notion of full respect for traditional rights as common law rights, nor native title rights as property rights, nor with the notion of full respect as applied in comparative jurisprudence. Australian law is premised on a pragmatic concern: that the exercise of Crown authority over land subject to native title is to be legitimated. The exercise of authority has extinguished native title to the extent that such authority was exercised. Australian jurisprudence has recast the relevant question. The relevant question is not whether authority was exercised in accordance with established legal principle, but whether authority was exercised in a way that disregarded native title property rights. The extent to which native title has been disregarded is the extent to which it has been extinguished. The conceptualisation of native title is a consequence of the shape native title must have in order to accommodate the law of extinguishment. At its heart, Australian law is a circular proposition: because the Crown grant of a right extinguishes native title to the extent that native title is inconsistent with that right, therefore , native title is a fragile right; and because native title is a fragile right, therefore it can be extinguished by the Crown grant of right.

The avoidance of the ownership question enables Australian jurisprudence to avoid answering the question: How can you sell or lease land you do not own? The answer to this question, implicit in the Australian law of extinguishment of native title, is that when the Crown sells or leases land it does not own, it destroys the ownership rights of the true owner, or the person with a better relative title. This new principle is not consistent with established legal principle.

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§7.5 Native title as a lesser right: the conceptualisation of native title in accordance with the principles of extinguishment

Chapter 4- The denial of full respect in the conceptualisation of native title argued native title is conceptualised in a way that denies it the status of ownership, title, property or even right. In order to contextualise native title as a lesser right, Australian jurisprudence has adopted various techniques to distinguish it from other property, and seemingly to distinguish native title from other forms of common law “right”. The purpose of this conceptualisation is to support the law of extinguishment of native title.

(a) Native title as a right under Australian law

While power and authority might rest on Crown sovereignty, power and authority are not common law rights and they are not the source of legal rights. The Australian law is the source of legal rights. The acts of the Crown conferring executive or legislative jurisdiction on itself to deal with a matter are not evidence of an intention to extinguish native title rights with respect to that matter.

Mabo determined that Australian law “recognizes” native title. This statement can be taken as the standard judicial expression of right-recognition, in the same way that Australian law “recognizes” damages for the loss of a commercial opportunity, 3 a distinction between a right and a non-right. However, the Australian law of native title indicates that there are further distinctions to be made between institutional common law rights and “fragile” native title rights; between native “title” and other forms of title, and between the native title property right and other property rights.

Native title is a right under Australian law in the sense that Australian law provides a remedy for the infringement of the right, and legislation does not interfere with the right unless that intention is plainly expressed. 4

(b) The subordination doctrines: native title as a lesser common law right

Australian jurisprudence has invoked the notion of an intersection between the Aboriginal normative system and the Australian legal system to portray traditional rights, in their expression as the common law right of native title, as lesser rights.

The intersection determines which traditional rights will be translated into rights under Australian law, and affirms the primacy of the common law perspective: traditional rights incapable of expression in common law terms cannot be

3 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 4 Wilson v Anderson at [61] per Gaudron, Gummow and Hayne JJ: “No doubt it is right to say that rights and interests are not to be held to have been abrogated by statute, except where the intention to do so is plainly expressed.”

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recognized as native title. What emerges from the intersection is a common law right. However, rather than being a process respecting the difference between Aboriginal and non-Aboriginal perspectives, the intersection subjugates traditional law/traditional rights/native title, as if this were a description of the one thing, to the common law by newly created rules of right-recognition: a doctrine of acceptable custom; the “skeletal principle”; and the “antithetical rights” principle. The native title right that enters the common law is compromised in its capacity to compete with other common law rights.

A discussion of the relationship between Australian law and traditional law contextualises traditional rights (“rights” under traditional law) as “weak” because they are unenforceable. They are unenforceable because they are not legal rights, not because of the nature of the Aboriginal connection to country. The weakness of traditional rights implies nothing about the strength or weakness of the common law right of native title. Native title can only exist as a common law expression of right. Native title is not an attempt to understand or explain the Aboriginal connection to country.

The discussion of the fragility of native title begins with an unresolved discussion of the relationship between traditional law and Australian law. Because traditional law is not a true source of law, traditional rights in their common law expression, are not true rights with respect to property, but fragile rights. Native title has not been located firmly within the common law conception of right, despite the fact that native title is a common law construct. Traditional law is not a direct source of law in Australia under either a doctrine of legal pluralism, or common law custom. However, Australian jurisprudence has invoked analogies of common law custom, under which traditional law is a subordinate source of law, to conceptualise native title as a lesser common law right, and traditional rights, in their expression as the common law right of native title, as subordinate to other common law rights.

(c) Native title is labelled a fragile right to distinguish it from other property rights

The distinction between native title and other common law property rights is referenced by the idea that native title is not an “institution” of the common law. Yet native title is the recognition of common law rights shaped by Aboriginal difference, not rights created by Aboriginal difference. Because the exercise of Crown authority over land is to be legitimated, the law of extinguishment of native title must have a particular shape. In order to support that shape, native title as a “right” must be extinguishable by the exercise of Crown authority. Priority is to be accorded to the Crown exercise of authority, whether or not that authority is supported by established legal principles. Weakness or fragility is to be accorded to native title as a consequence, whether or not native title equates to ownership or title, property or right.

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§7.6 Native title as a fragile property right

Chapter 6 - The denial of full respect in the extinguishment of native title demonstrated that Australian law has not developed a jurisprudence which respects native title as a property right.

(a) The translation of pre-existing rights into property rights

Full respect dictates that if a proprietary intent over land is manifested by traditional rights, that intent forms the core of the common law right of native title. Comparative jurisprudence has emphasised native title as ownership of land and everything on or under the land: the right of exclusive occupation of land and the exclusive right to exploit land as an economic resource.

Australian jurisprudence has accepted as appropriate the conceptualisation of native title in terms of the law of property: a right “against the whole world to possession, occupation, use and enjoyment” of land. The translation of the traditional right to speak for country into the common law right of exclusive possession suggests that Australian jurisprudence is indeed both fully respecting the traditional right, and searching for the most apt common law expression of that right. However, faithful translation requires not only that the right be meaningful in its common law expression, but that the proprietary intent, to the extent it is manifested in an intention to control land, be translated into a true form of title to land. The right to control land falls within the ownership spectrum, a form of full-blooded ownership rather than a simple land-use right. But the translation of traditional rights into common law title has not occurred in Australian jurisprudence because it ultimately involves resolution of the ownership question, and therefore an explanation of whether Aboriginal communities lost ownership of the land, and whether the Crown acquired it. Instead of being a meaningful form of title, native title is a bundle of extinguishable land use and land control rights.

(b) Native title as a property right with sui generis content

Sui generis is an appropriate description of difference, but it has no inherent meaning that one right, when compared to another right, is fragile, although it identifies the two rights as distinct.

The content of the communal native title right of exclusive possession is not, in any relevant way, different to the right of exclusive possession passing by a Crown grant of an estate in fee simple. Both confer an uncatalogable list of rights to use land, and to control the use of land. The right to control access to land cannot have an inherently different quality, whether it is exercised for purposes determined by Aboriginal tradition, or a Western perspective, or whether it is held communally or individually. Certainly there may be specific use-rights articulated under native title that would not have entered the legal imagination of those granting an estate in fee simple, but to the extent both sets of rights involve land use, the quality of the use-right is indistinguishable from any other

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use-right. In Australian jurisprudence the description of native title as sui generis does not assist in understanding native title as a proprietary interest, and does not serve to distinguish native title, as a right of exclusive possession, from common law conceptions of property as control. The expression sui generis serves only to indicate that the list of land control and land use rights held under native title is not the same as the list of rights conveyed by the expression “estate in fee simple.”

(c) The destruction of property rights: more than a mere side wind required

The legal values of Australian law include not only the abstract notions of justice and equality, but the presumption against executive or legislative interference with rights. Australian and comparative jurisprudence hold that native title can be extinguished on purchase, or by the enactment of legislation which is clearly and plainly intended to extinguish native title. When legislation expressly authorises indigenous land to be “taken”, native title is extinguished. Rights are not to be extinguished by a “side wind”. To hold otherwise would be to destroy rights “which were not in the contemplation of the Legislature.” 5

[Maori title can be extinguished] only by means of a deliberate Act authorized by law and unambiguously directed towards that end. Unless there is legislative authority… the Executive cannot, for example, extinguish customary title by granting the land to someone other than the customary owners. If it does so the grantee’s interest is taken subject to the customary title... Customary title does not disappear by a side wind. 6

(d) Crown grants and the Crown as source of title

The purchase or legislative acquisition of native title means that the Crown has acquired absolute ownership of the land (allodial title), out of which it can grant an estate in fee simple. In the absence of allodial title, the Crown cannot grant a perfect title to grantees. It cannot grant an interest that is good as against native title holders. As between grantor and grantee, interests under Crown grant are regulated by the doctrines of tenure and estates. The doctrines do not dictate that the Crown in the Australian Colonies has acquired allodial title.

Australian jurisprudence has created the principle of extinguishment of native title by the grant of an estate in fee simple, without the prior acquisition of allodial title, and this in turn rests on the proposition that native title is an inherently fragile right and a principle of priority holding that rights under Crown grant extinguish fragile rights. The argument that rights under Crown grant destroy all other property rights, in the absence of some restraining presumption, is based not on established legal principles of property law or wider principles of the common law, but on a positive derogation principle created in Mabo and endorsed in the Native Title Act Case . Chapter 6 - The denial of

5 Forbes v Ecclesiastical Commissioners (1872) LR 15 Eq 51 at 55 6 Faulkner v Tauranga District Council [1996] 1 NZLR 357, 363.

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full respect in the extinguishment of native title demonstrated that there is no such common law principle. When the Crown grants an estate in land at common law, it carves that estate out of its allodial title, and no longer has any legal capacity to grant an estate that overlaps with the estate granted. A presumption against the derogation from an earlier grant is therefore otiose. Property rights are respected by a wider common law principle: “an ancient and constant rule of law, that the king's grants are invalid when they destroy or derogate from rights privileges or immunities previously vested in another subject”. This principle protects all vested rights, not just those derived from, or presumed to derive from, Crown grant. But the creation of the positive derogation principle, coupled with the distinction between rights under Crown grant and fragile native title rights, determines the relationship between the two rights in Australian jurisprudence: rights under Crown grant extinguish native title to the extent of any inconsistency between the two rights.

Australian jurisprudence is inconsistent with comparative jurisprudence because comparative jurisprudence contains neither the principle of positive derogation, nor the conceptualisation of native title as a fragile right. In the comparative jurisprudence there is no test of inconsistency of rights, there is only the question of whether the Crown has exercised its authority to create interests in land in accordance with established legal principle. That question is resolved in the first instance by asking whether the Crown has acquired ownership of the land. If it has not, then the burden of native title remains, in the absence of legislation clearly and plainly removing it. Native title remains a burden on any property right granted, remains a right against the Crown, and as a consequence, the Crown cannot grant truly in rem rights, as against native title holders.

(e) An appropriate principle about priorities

The Australian law of extinguishment of native title holds that native title can be extinguished by Crown grant. To accommodate this proposition, Australian law title holds that native title has a "weakness", it is "an inherently fragile" right. Australian jurisprudence therefore adopts a circular proposition: because native title can be extinguished by Crown grant, it is fragile; because it is fragile, native title can be extinguished by Crown grant. Priority is to be accorded to rights under Crown grant.

(f) The presumption of compensation for the loss of native title

In the absence of a clear and plain legislative intention to the contrary, any taking of property confers on the property holder a right to compensation. Australian jurisprudence has denied a right to compensation for the loss of native title, by bare assertion. Such a denial cannot be justified on the basis that native title is not “property”, and is inconsistent with Australian property jurisprudence and comparative native title jurisprudence.

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§7.7 Concluding remarks

Since the settlement of the Australian colonies, native title rights have been ignored. As a result of Mabo and the Native Title Act , these rights are no longer ignored. They are meaningful legal rights which can be asserted and protected, and which government must take into account with respect to future dealings in Crown land. This is the first achievement of Mabo .

A jurisprudence of rights recognition focuses on how native title is to be protected as a right under Australian law. A jurisprudence of difference, based on according priority to interests under Crown grants, looks at difference, and regards difference as an indication of lesser

The Australian conception of native title does not amount to a clear recognition that at sovereignty, Aboriginal communities owned the land. Native title, a right derived from a direct connection to land rather than a Crown grant of ownership, has been seen as sufficiently different to justify the treatment of native title as a fragile and lesser form of property, compared to other property rights under Australian law. This is the second achievement of Mabo.

Australian law holds that by ignoring the property rights of Aboriginal communities and their members, and dealing with land as if it were the owner, the Crown has extinguished native title. This is hardly a doctrine of full respect for pre-existing property rights. The effect of the Racial Discrimination Act was to alter Australian law in this regard, and draw a line between what could be ignored and what could no longer be ignored. The effect of the Wik Amendments was to shift this line from 31 October 1975 to 23 December 1996. The future of native title lies in an era of debilitating litigation hopefully giving way to an era of meaningful negotiation, in accordance with the law as set out above: the recognition of native title as a limited property right shaped by the need to validate the Crown use of land that it never owned.

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page 238 Bibliography

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Chalmers G, Opinions of Eminent Lawyers on Various Points of English Jurisprudence (London, Reed & Hunter, 1814)...... 39 Chalmers G, Political Annals of the Present United Colonies [1780] (facsimile, New York: Burt Franklin, 1968) ...... 39 Cheshire GC and Burn EH, Modern Law of Real Property (16 ed) (London: Butterworths, 2000)...... 99, 100 Chitty J, Prerogatives of the Crown (London: Butterworths, 1820)...... 40, 182, 183 Choudhury T and Moon G, “Complying With Its International Human Rights Obligations: The...... 49 Cohen F, “Dialogue on Private Property” (1954) 9 Rutgers L Rev 357 ...... 101 Cohen F, “Original Indian Title” (1947) 32 Minn L Rev 28...... 23, 144 Cohen M, "Property and Sovereignty" (1927) 13Cornell Law Review 8...... 149, 150 Cox N, “The Extension of the Common Law to Settled, Ceded and Conquered Territories, and the Survival of Indigenous Laws”, Paper at the ANZ Law and History Society Conference, U Waikato, July 2001 ...... 41 Curwen N, “The Squatter's Interest at Common Law” (2000) Conveyancer and Property Lawyer 528...... 154, 155 Daamen R, National Theme D: The Crown’s Right of Pre-Emption and Fitzroy’s Waiver Purchases (Wellington: Waitangi Tribunal 1998)...... 116 De Puy H, Bibliography of the English Colonial Treaties with the American Indians including a Synopsis of Each Treaty (New York The Lenox Club 1917)...... 23 Department of Indian Affairs and Northern Development (Canada), Federal Policy Guide: Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self- Government (Ottawa: Minister of Public Works and Government Services Canada, 1995)...... 29 Dobie WJ, Allodial Law (Edinburgh: Stair Society, 1925)...... 126, 159 Ekow WC, “The interaction of English Law with customary law in West Africa” (1964) 18 ICLQ 547 ...... 82 Ford M, “Indian Country and Inherent Tribal Authority: Will They Survive ANCSA?” (1997) 14 Alaska L Rev 443 ...... 27 Frame A, The Fiduciary Duties of the Crown to Maori: Will the Canadian Remedy Travel? (2005) 13 Waikato L Rev 111...... 36 Freeman EA, William the Conqueror (London: Macmillan and Co, 1913) ...... 162 Giovarelli R and Hanstad T, “Land Ownership”, in Prosterman R and Hanstad T (ed), Effective Rural Land Relations in ECA Countries: A Comparative Perspective (Washington DC: World Bank Group, 1998) ...... 67 Gray K and Gray SF, “The Idea of Property in Land”, in Bright S and Dewar J (eds), Land Law: Themes and Perspectives (Oxford: OUP, 1998) 15 ...... 189 Gray K, “Property in Thin Air” (1991) 50 Cambridge LJ 252...... 97 Hale M, The History of the Common Law of England [1713] ((New York, NY: Legal Classics Library 1987)...... 81 Halsbury’s Laws of England (4 th reissue) (London, Butterworths, 1997) ...... 80, 81 Harris JW, Property and Justice (Oxford: Clarendon Press, 1996) ...... 97, 100 Henderson J, “Mikmaw Tenure in Atlantic Canada” (1995) 18 Dal LJ 196 ...... 44, 113 Hohfeld WN, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale LJ 710...... 6 Hohfeld WN, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23 Yale LJ 16 ...... 6 Honoré A, “Ownership", in Guest A (ed), Oxford Essays in Jurisprudence (First Series) (Oxford: Clarendon Press, 1961)...... 95 Honoré A, “Ownership” in Honoré A, Making Laws Bind (Oxford: Clarendon Press, 1987 ...... 13

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Honoré A, “Rights of Exclusion and Immunities against Divesting” (1960) 34 Tulane L Rev 453...... 101 Hooker MB, Legal Pluralism: an Introduction to Colonial and Neo-Colonial Law (Oxford: Clarendon Press 1975)...... 42 Hunter A, “The Boundaries of Colonial Criminal Law in Relation to Inter-Aboriginal Conflict ('Inter Se Offences') in Western Australia in the 1830s-1840s” (2004) 8 Aust J Legal History 215...... 42 Huntly CT, In search of an appropriate analogy for sports entities incorporated under associations incorporation legislation in Australia and New Zealand using broadly conceived corporate law organic theory (Perth, Murdoch University Digital Theses Program, PhD, 2005) ...... 103 INAC, General Briefing Note on the Comprehensive Land Claims Policy of Canada (March 2007) http://www.ainc-inac.gc.ca/ps/clm/gbn/index_e.html ...... 217 Jowell J, "Is Equality a Constitutional Principle?" (1994) 47 CLP 1...... 54 Karsten P, Between Law and Custom: 'High' and 'Low' Legal Cultures in the Lands of the British Diaspora – the United States, Canada, Australia, and New Zealand, 1600-1900 (Cambridge: Cambridge UP, 2002) ...... 114 Kent J, Commentaries on American Law (New York: O Halstead, 1826-30)...... 40, 113, 126 Kercher B, “R v Ballard, R v Murrell and R v Bonjon” (1998) 3 AILR 410 ...... 42 Kyd S, A Treatise on the Law of Corporations (London: J Butterworth, 1793-94)...... 182 Lametti D, “Property and (Perhaps) Justice” (1998) 43 McGill LJ 665 ...... 95, 98 Lashley M, “Implementing Treaty Settlements via Indigenous Institutions: Social Justice and Detribalization in New Zealand” (2000) 12 The Contemporary Pacific 1...... 25 Law Commission, Study Paper 9: Mäori Custom and Values in New Zealand Law (Wellington: Law Commission, 2001)...... 14, 43, 71 Lawson FH and Rudden B, The Law of Property (2ed) (Oxford: OUP 1982)...... 6 Lendrum S, “The Coorong Massacre: Martial Law and the Aborigines at First Settlement” (1977) 6 Adelaide L Rev 26...... 42 Lester GS, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (doctoral thesis, Toronto 1981)...... 18, 41, 162, 163 Lincoln C, Constitutional History of New York from the Beginning of the Colonial Period to the Year 1905 (Rochester, NY: Lawyers Co-operative Publishing Co, 1906. Reprint. Buffalo, WS Hein, 1994)...... 113 Litchfield J, “Compensation for Loss and Impairment of Native Title Rights and Interests: An analysis of suggested approaches” (1999) 18 AMPLJ 263 (Part 1...... 213 Litchfield M, “Confiscation of Maori Land” (1985) VUW L Rev 335...... 21 Macklem P, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001)...... 54 Maddock K, The Australian Aborigines: a portrait of their society (2 ed, Ringwood, Vic: Penguin, 1982)...... 68 Maitland F, Domesday Book and Beyond (Cambridge: CUP, 1897)...... 150, 162 Mantziaris C and Martin D, Native Title Corporations: A Legal and Anthropological Analysis (Leichhardt: Federation Press, 2000)...... 103 Martin C (ed), Oxford Dictionary of Law (4 ed, Oxford: OUP, 1997)...... 193 Martin G (ed), The Founding of Australia: The Argument About Australia’s Origins (Sydney: Hale & Iremonger, 1978) ...... 35 McHugh PG, The Common-Law Status of Colonies and Aboriginal "Rights": How Lawyers and Historians Treat the Past (1998) 61 Sask L Rev 393...... 33, 39, 41 McIntyre WD and Gardner WJ (eds), Speeches and Documents on New Zealand History (Oxford: OUP, 1971)...... 12 McNeil K, “Extinguishment of Aboriginal Title in Canada: Treaties, Legislation, and Judicial Discretion” (2002) 33 Ottawa L Rev 301...... 157

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McNeil K, Common Law Aboriginal Title (Oxford: Clarendon Press, 1989)...... 43, 124, 162 Meek CK, Land Tenure and Land Administration in Nigeria and the Cameroons (London: HMSO, 1957) ...... 132, 204 Megarry R and Wade HWR, Law of Real Property (6 ed, London: Sweet & Maxwell, 2000)...... 99, 100, 152, 153, 155, 186 Munzer S, A Theory of Property (Cambridge: Cambridge UP, 1990)...... 96 Northern Territory Law Reform Committee, Background Paper 1: Aboriginal communities and Aboriginal law in the Northern Territory (Darwin: NTLRC, 2003) ..89 Northern Territory Law Reform Committee, Background Paper 3: The legal recognition of Aboriginal customary law (Darwin: NTLRC, 2003)...... 89 Nwabueze RN, The Dynamics and Genius of Nigeria's Indigenous Legal Order (2003) 1 Indigenous LJ 1 ...... 82 Nygh P and Butt P (eds), Butterworths Australian Legal Dictionary (Sydney: Butterworths, 1997)...... 105 Nys E (ed), F de Victoria, De Indis et de Jure Belli Relectiones [1557] (Washington, DC: Carnegie Institute, 1917) ...... 13 Office of Treaty Settlements, Healing the past, building a future (2ed Wellington: OTS, 2002)...... 25 Oxford English Dictionary (2ed, Oxford: Clarendon Press, 1989)...... 105 Parliamentary Debates (Senate Hansard) ...... 4 Pearce DC and Geddes RS, Statutory Interpretation in Australia (6 ed, Sydney: Butterworths, 2001)...... 4, 173, 213 Penner JE, “The “Bundle of Rights” Picture of Property” (1996) 43 UCLA L Rev 711 ...... 96 Perry M and Lloyd S, Australian Native Title Law (Sydney: Law Book Co, 2003 ...... 3 Peterson N, “Demand-sharing: Reciprocity and the Pressure for Generosity among Foragers” (1993) 95 American Anthropologist 860...... 73 Poirier M, “The Virtue of Vagueness in Takings Doctrine” (2002) 24 Cardozo L Rev 93...96 Pollock F and Maitland F, History of English Law Before the Time of Edward I [1898] (Cambridge: Cambridge UP 1968) ...... 126, 148, 149, 151 Preston R, Estates (2ed, London: J & WT Clarke, 1820-27) ...... 154 Prucha F, American Indian Treaties: The History of a Political Anomaly (Berkeley: U California Press, 1994)...... 23 Reiter RA, The Law of Canadian Indian Treaties (Edmonton: Juris Analytica, 1995) ...... 22 Reynolds H, The Law of the Land (Melbourne: Penguin, 1987)...... 2 Riseborough H and Hutton J, National Theme C: The Crown's engagement with customary tenure in the 19th century (Wellington: Waitangi Tribunal, 1997)...... 116 Robertson LG, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (Oxford: OUP, 2005) ...... 18 Roberts-Wray K, Commonwealth and Colonial Law (London: Stevens and Sons, 1966)...2, 45, 124, 164 Rose C, “The Comedy of the Commons: Custom, Commerce, and Inherently Public Property” (1996) 53 U Chi L Rev 711...... 68, 69, 109 Royster J, “The Legacy of Allotment” (1995) 27 Ariz St LJ 1 ...... 20 Salmond J, Jurisprudence (7 ed, London: Stevens and Haynes, 1924)...... 12, 125 Secher U, “A Conceptual Analysis of the Origins, Application and Implications of the Doctrine of Radical Title of the Crown in Australia: an Inhabited Settled Colony (Unpublished PhD Thesis, UNSW, 2003) ...... 124 Slattery B, “Making Sense of Aboriginal and Treaty Rights” (2000) 79 Canadian Bar Rev 196...... 41 Slattery B, “The Land Rights of Indigenous Canadian Peoples" (doctoral dissertation) reprinted (Saskatoon: U Saskatchewan Native Law Centre, 1979)...... 15, 43 Slattery B, “Understanding Aboriginal Rights” (1987) 66 Canadian Bar Rev 727.41, 56, 105

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Slattery B, “What are Aboriginal Rights?” in Foster H, Raven H and Webber J, (eds) Let Right Be Done: Calder, Aboriginal Title, and the Future of Indigenous Rights (Vancouver: UBC Press, 2007) ...... 29 Slattery B, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (Saskatoon: U Saskatchewan Native Law Centre, 1983) ...... 114 Smith N, Native Custom and Law Affecting Maori Land, (Wellington: Māori Purposes Fund Board, 1942)...... 113 Stanner W, “Aboriginal Territorial Organization: Estate, Range, Domain and Regime” (1965) 36 Oceania 1 ...... 68 Stanner W, White Man Got No Dreaming, (Canberra: ANU Press, 1979) ...... 66 Stoljar SJ, Groups and Entities: An Enquiry into Corporate Theory (Canberra: ANU Press, 1973)...... 103 Story J, Commentaries on the Constitution (Boston: Hilliard, Gray, & Co, 1833)...... 40 Strehlow T, Central Australian Religion: Personal Monototemism in a Polytotemic Community, [1964] (Bedford Park, SA: AASR, 1978)...... 73 Strickland R (ed), Felix Cohen’s Handbook of Federal Indian Law (Charlottesville: The Mitchie Company 1982)...... 23, 144 Sullivan P, A sacred land, a sovereign people, an Aboriginal corporation. Prescribed Bodies and the Native Title Act (Darwin: NARU, 1997)...... 103 Sutton P, Kinds of Rights in Country: Recognising customary rights as Incidents of Native Title (Perth: NNTT, 2001)...... 66, 68, 73, 74, 75 Tetley W, “Mixed Jurisdictions: Common Law vs Civil Law” (1999) 4 Uniform L Rev (Part 1) 591...... 38 Tucker St. G (ed), Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States (Philadelphia: Birch and Small, 1803)39 Vinogradoff P, Feudalism (Cambridge: CUP, 1924)...... 149, 162 Waitangi Tribunal (Rangahaua Whanui District Reports Series), District 11b: Hawke’s Bay by D Cowie (Wellington: GP Pubs, 1996) ...... 14 Waitangi Tribunal, Mohaka River Report (Wellington: GP Pubs, 1992) ...... 14 Waitangi Tribunal, Ngai Tahu Land Report (Wellington: GP Pubs, 1991) ...... 14 Walker R, “Maori Sovereignty, Colonial and Post-colonial Discourses”, in Havemann P (ed), Indigenous Peoples’ Rights in Australia, Canada, and New Zealand (Auckland Oxford University Press 1999)...... 12 Walters MD, “The Morality of Aboriginal Law” (2006) 31 Queen's LJ 470...... 106, 142 Ward A, Rangahaua Whanui National Overview Report (Wellington: GP Pubs for Waitangi Tribunal Research Services, 1997) ...... 25 Washington H (ed), Writings of Thomas Jefferson (New York: Derby and Jackson, 1859) ...... 23 Weaver JC, The Great Land Rush and the Making of the Modern World, 1650–1900 (Montreal and Kingston: McGill-Queen's UP 2003) ...... 113 Westen P, Speaking of Equality: An Analysis of the Rhetorical Force of 'Equality' in Moral and Legal Discourse (Princeton: Princeton University Press, 1990)...... 49 Wilkins D, American Indian sovereignty and the US Supreme Court: The Masking of Justice. (Austin: U Texas Press, 1997)...... 17 Williams N, Two laws: Managing Disputes in a Contemporary Aboriginal Community (Canberra: AIAS, 1987) ...... 68, 89 Williams RA, The American Indian in Western Legal Thought: The Discourses of Conquest (New York: OUP, 1990)...... 40 Woodward AE, Aboriginal Land Rights Commission, First Report (Canberra: AGPS 1973), Second Report (Canberra: AGPS 1974) ...... 69, 72

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Table of Cases and Legislation

CASES A v Secretary of State for the Home Department [2003] 2 WLR 564...... 49 Abinabina v Enyimadu [1953] AC 207 ...... 119 Adarand Constructors Inc v Pena 515 US 200 (1995) ...... 55 Adeyinka Oyekan v Musendiku Adele (1957) 1 WLR 876 ...... 34, 47, 214, 221 Alabama-Coushatta Tribe of Texas v US 2000 WL 1013532 (Fed Cl) ...... 27 Alcock v Cooke (1829) 5 Bing 340...... 157, 185 Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC)...... 132 Al-Kateb v Godwin (2004) 219 CLR 562...... 172 Amodu Tijani v Secretary,Southern Nigeria [1921] 2 AC 39934, 43, 44, 65, 74, 110, 124, 128, 129, 130, 131, 132, 137, 138, 164, 204, 213 Ashby v White (1703) 2 Ld Raym 938...... 77 Attorney-General (Southern Nigeria) v John Holt & Co (Liverpool) Ltd [1915] AC 599 .130 Attorney-General of Ontario v Mercer (1883) 8 AC 767...... 153 Attorney-General of Quebec v Attorney-General of Canada [1921] 1 AC 401 .127, 128, 129, 137 Attorney-General of the Northern Territory v Ward [2003] FCAFC 283...... 68 Attorney-General v Brown (1847) 1 Legge 312...... 2, 158, 164 Attorney-General v Cain [1906] AC 542...... 128 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 ...... 213, 214 Attorney-General v Ngati Apa [2003] 3 NZLR 643. 14, 30, 33, 45, 46, 112, 125, 137, 164, 166, 171, 175, 199, 200, 215 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 ...... 101, 103 Barrington's Case (1611) 8 Co Rep 138a ...... 174 Beattie v Canada (2000) 197 FTR 209 ...... 29 Beecher v Wetherby 95 US 517 (1877)...... 24, 142 Belfast Corp v OD Cars Ltd [1960] AC 490...... 173 Bhe and Others v Magistrate, Khayelitsha, 2005 (1) SA 580...... 131 Blankard v Galdy (1693) 2 Salk 411...... 39 Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 ...... 173 Brand v Chris Building Society [1957] VR 625...... 215 Bristow v Cormican (1878) 3 App Cas 641...... 165 Bropho v Western Australia (1990) 171 CLR 1 ...... 172 Calder v Attorney-General of British Columbia [1973] SCR 313 ....15, 22, 29, 35, 44, 71, 100, 108, 113, 124, 128, 167, 174 Calvin’s Case (1609) 7 Co Rep 1 ...... 153 Campbell v Hall (1774) 1 Cowp 204...... 44 Canadian Pacific Ltd v Paul [1988] 2 SCR 654...... 95, 105 Case 15 – Anonymous (1722) 2 Peere Williams 75, 24 ER 646...... 39 Case of Alton Woods (1600) 1 Co R 40b ...... 157 Case of Churchwardens of St Saviour Southwark (1613) 10 Co Rep 66b ...... 184 Case of Tanistry (1608) 80 ER 516...... 81, 87, 153 Central Control Board v Cannon Brewery Company Ltd [1919] AC 744...... 214, 219 Cherokee Nation v Georgia 30 US 1 (1831)...... 17 Chippewas of Sarnia Band v Attorney General of Canada [2001] 1 CNLR 56 (Ont CA) 161, 194, 216 Choate v Trapp 224 US 665 (1912)...... 19

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Choteau v Molony 16 How 203 (1853) ...... 19 Church v Fenton (1878) 28 Upper Canada Common Pleas 384 ...... 15 City of Vancouver v Vancouver Lumber Company [1911] AC 711 ...... 184 Clark v Smith 38 US 195 (1839)...... 143 Coe v Commonwealth [1979] 53 ALJR 403...... 40 Commonwealth v New South Wales (1923) 33 CLR 1 ...... 151 Commonwealth v Yarmirr (1999) 101 FCR 171...... 80, 85 Commonwealth v Yarmirr (2001) 208 CLR 1... 41, 43, 45, 48, 60, 68, 76, 77, 79, 80, 82, 84, 85, 97, 98, 102, 111, 125, 129, 134, 140, 149, 188 County of Oneida Indian Nation v County of Oneida 414 US 661 (1974) [Oneida I]..23, 24, 26, 114, 142 County of Oneida v Oneida Indian Nation 470 US 226 (1985) [Oneida II] ...... 24, 26 County of Sherrill v Oneida Indian Nation 544 US 1 (2005) ...... 26 Cramer v US 261 US 219 (1923) ...... 196 Danforth v Wear 22 US (9 Wheat) 673 (1824) ...... 24 De Beer v Graham (1891) 12 NSWLR (E) 144 ...... 101 De Rose v South Australia [2002] FCA 1342...... 69 Delgamuukw (1993) 104 DLR (4th) 470 (BCCA)...... 26, 137, 167, 177, 206, 207 Delgamuukw v British Columbia [1997] 3 SCR 1010 . 16, 17, 22, 26, 30, 33, 36, 44, 70, 94, 99, 100, 102, 105, 106, 107, 108, 109, 110, 111, 113, 115, 117, 156, 175, 177, 195, 206, 207, 217 Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283...... 38 Dietrich v R (1992) 177 CLR 292 ...... 84 Doe d Wilson v Terry (1849) 1 Legge 505...... 152 Dugan v Mirror Newspapers (1978) 142 CLR 583 ...... 38 Earl of Rutland's Case (1608) 8 Co Rep 55a ...... 183, 184 Edwardsen v Morton 369 F Supp 1359 (1973) ...... 197 Ex parte Hamilton (1864) 3 SCR (NSW) (L)...... 155 Faulkner v Tauranga District Council [1996] 1 NZLR 357...... 203, 204, 235 Fejo v Northern Territory (1998) 195 CLR 965, 60, 63, 76, 80, 88, 100, 151, 168, 177, 185, 186, 187, 188, 189, 191, 193, 194, 195, 196, 198, 200, 206, 207, 210, 222 Fingleton v R (2005) 216 ALR 474 ...... 49 Fletcher v Peck 10 US (6 Cranch) 87 (1810)...... 17, 18, 24, 142 Forbes v Ecclesiastical Commissioners (1872) LR 15 Eq 51 ...... 173, 174, 235 George v Gamble 2 Overt (Tenn) 170 (1812)...... 23 Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297...... 213 Gerhardy v Brown (1985) 159 CLR 70 ...... 54 Giumelli v Giumelli (1999) 196 CLR 101 ...... 215 Griffiths v Northern Territory (No 2) [2006] FCA 1155 ...... 64 Griffiths v Northern Territory [2007] FCAFC 178...... 4, 65, 68, 72 Guardian of the Tribe of Hualpai v Sante Fe Pacific RRCo 314 US 339 (1941) .19, 23, 24, 25, 26, 43, 196 Guerin v R [1984] 2 SCR 335 ...... 15, 16, 43, 44, 46, 108, 110, 115, 117 Gumana v Northern Territory (No 2) [2005] FCA 1425 ...... 4, 174 Gumana v Northern Territory [2005] FCA 50 ...... 68, 73, 96, 113 Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511...... 37 Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513....108, 193, 195, 196, 205, 206 Hanasiki v OJ Symes (Unreported, High Court of the Solomon Islands, Charles J 17 August 1951) ...... 79 Hayes v Northern Territory [1999] FCA 1248 ...... 73, 170 Holden v Joy 84 US 211 (1872)...... 18

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Hughes v Governor etc Hudson's Bay (1998) 55 BCLR (3d) 377 (BCSC)...... 137 Hull v Nottinghan (1876) 33 LTR 697 ...... 80 Hunt v Halcan Log Services Ltd [1987] 4 CNLR 63...... 208 Idewu Inasa v Oshodi [1934] AC 99...... 81, 82, 204 In Re Southern Rhodesia [1919] AC 211...... 43, 44, 164, 165, 169 In the matter of the Islington Market Bill (1835) 3 Cl & F 513 ...... 185 Incorporated Society v Richards (1841) 1 Dru & War 258 ...... 155 Inupiat Community v United States 680 F 2d 122 (1982)...... 197 JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 ...... 155 Jango v Northern Territory [2007] FCAFC 101...... 68, 96 Johnson v McIntosh 21 US 543 (1823)..... 17, 18, 19, 40, 112, 114, 115, 116, 118, 119, 142, 143, 196 Kanak v National Native Title Tribunal (1995) 61 FCR 103...... 4 Kansas Indians 5 US (Wall) 737 (1867) ...... 23 Kielly v Carson (1842) 4 Moo PC 63...... 44 Kwamina Kuma v Kofi Kuma (1938) 5 WAC 4...... 131 Lane v Pueblo of Santa Rosa 249 US 110 (1919) ...... 196 Leavenworth, Lawrence, and Galveston Railroad Company v United States 92 US 733 (1875) ...... 19, 142 Lee v Glover 8 NYR 189 (SCNY, 1828) ...... 19 Leech Lake Band of Chippewa Indians v Herbst 334 F Supp 1001 (1971)...... 28 Lehman v McBride 15 Ohio St. 573 (1863)...... 54 Leiriao v Val-Bélair (Town) [1991] 3 SCR 349...... 174 Lipan Apache Tribe v United States 180 Ct Cl 487 (1967)...... 24, 27, 174 Livingstone v Rawyards Coal Co (1880) 5 App. Cas. 25...... 215 Lord Advocate v Clyde Navigation Trs (1891) 19 R 174...... 159 Lord Advocate v Wemyss (1899) 2 F 1 ...... 159 Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982)...... 101 Lyng v Northwest Indian Cemetery Protective Association 485 US 439 (1988) ...... 17 Mabo v Queensland (1989) 166 CLR 186...... 2, 8, 61, 62, 111, 209, 210, 230 Mabo v Queensland (No 2) (1992) 175 CLR 1.. 3, 4, 8, 12, 33, 34, 35, 36, 38, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 52, 53, 54, 55, 60, 61, 62, 65, 71, 74, 80, 81, 82, 83, 84, 87, 95, 97, 98, 110, 111, 113, 118, 119, 121, 124, 125, 126, 128, 129, 132, 133, 134, 135, 136, 138, 140, 141, 148, 149, 155, 158, 162, 163, 164, 166, 167, 168, 174, 175, 176, 178, 179, 180, 181, 184, 187, 188, 189, 190, 192, 194, 209, 212, 214, 215, 218, 219, 220, 221, 222, 224 Maciantonio v Queen (1994) 183 CLR 58...... 49 Magna Carta 1215, 17 John c.29 ...... 79, 213 Marsh v Brooks 49 US (8 How) 223 (1850)...... 19 Marsh v Brooks 55 US 513 (1852) ...... 197 Marshall v Clark 1 Kentucky 77 (KCA 1791)...... 24 Mason v Tritton (1994) 34 NSWLR 572...... 61 Matadeen v Pointu [1999] 1 AC 98...... 49 Mayor of Exeter v Warren (1844) 5 QB 773...... 185 McRitchie v Taranaki Fish and Game Council [1999] 2 NZLR 139 ...... 14 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 442 ...4, 47, 48, 66, 76, 82, 83, 86, 88, 89, 111, 124, 188 Mercer v Denne [1905] 2 Ch 538...... 119 Michigan Land & Lumber Co v Rust 168 US 589 (1897) ...... 197 Milirrpum v Nabalco (1971) 17 FLR 141...... 2, 42 Minister of State for the Army v Dalziel (1944) 68 CLR 261...... 98, 213 Minnesota v Mille Lacs Band of Chippewa Indians 526 US 172 (1999) ...... 28 Mitchel v US 34 US 711 (1835) ...... 18, 19, 24, 26, 142

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Mitchell v MNR [2001] 1 SCR 911 ...... 28, 35, 36, 43, 86 Mitchell v Scales (1907) 5 CLR 405...... 38 Montana v United States 450 US 544 (1981) ...... 17 Mostyn v Fabrigas (1774) 1 Cowp 161 (KB)...... 38, 44 Mounsey v Ismay (1863) 1 Hurl & Colt 729...... 80 National Provincial Bank Ltd v Ainsworth [1965] AC 1175...... 98 National Trustees Executors and Agency Co v FCT (1954) 91 CLR 540...... 98 Native Title Act 1993 (Cwth) ..83, 95, 96, 111, 151, 167, 173, 175, 176, 178, 189, 191, 192, 218, 223, 235 Neowarra v Western Australia [2003] FCA 1402...... 69, 72 New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337...... 2, 162 New Windsor Corporation v Mellor [1975] Ch 380...... 81, 186 New York Indians 5 US (Wall) 761 (1867)...... 23 New Zealand Maori Council v Attorney General [1987] 1 NZLR 641...... 12 New Zealand Maori Council v Attorney General [1994] 1 NZLR 513 (PC)...... 12, 36 Nireaha Tamaki v Baker [1901] AC 561 ...... 13, 14, 21, 22, 112, 132, 138, 166, 203, 215 Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135...... 4, 62, 83 Oshodi v Balogun [1936] 2 All ER 1632...... 204 Osoyoos Indian Band v Oliver (1999) 172 DLR (4th) (BCCA) 589...... 137 Osoyoos Indian Band v. Oliver (Town) [2001] 3 SCR 746 ...... 108, 173 Papua and New Guinea v Daera Guba (1973) 130 CLR 353...... 114, 115, 132, 157 Patta Warumungu People v Northern Territory [2007] FCA 1386...... 64, 107 Penn v Lord Baltimore (1750) 1 Ves Sen 444 ...... 40 Potter v Minahan (1908) 7 CLR 277 ...... 172 Quan Yick v Hinds (1905) 2 CLR 345 ...... 38 R v Adams [1996] 3 SCR 101...... 28 R v Alphonse (1993) 80 BCLR (2d) 17 (CA) ...... 208 R v Badger [1996] 1 SCR 771 ...... 208 R v Ballard (1829) ...... 42 R v Bernard 2003 NBCA 55...... 170, 175 R v Bonjon [1841] (1998) 3 AILR 417...... 42 R v Gladstone [1996] 2 SCR 723...... 207 R v Marshall (2003) 218 NSR (2d) 78 ...... 91 R v Marshall; R v Bernard [2005] 2 SCR 220...... 65, 91, 93, 94, 99, 100, 102, 105, 106 R v Mercure (1988) 48 DLR (4th) 1...... 172 R v Murrell (1836) 1 Legge 72 (SCNSW) ...... 42 R v Oxfordshire County Council: ex parte Sunningwell Parish Council [2000] AC 335...47, 120 R v Sappier; R v Gray [2006] 2 SCR 686...... 29 R v Sioui [1990] 1 SCR 1025...... 16 R v Sparrow [1990] 1 SCR 1075...... 195, 207 R v Sundown [1999] 1 SCR 393...... 70 R v Symonds (1847) [1840-1932] NZPCC 387 21, 36, 43, 50, 112, 115, 116, 117, 118, 137, 157, 160, 161, 166, 194 R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327...... 67, 98 R v Van der Peet [1996] 2 SCR 507...... 16, 28, 29, 36, 56, 77, 105, 106, 108, 110, 117, 217 R v We-War (1842) Quarter Sessions, WA ...... 42 R v White and Bob (1964) 50 DLR (2d) 613...... 35 R v Williams [1995] 2 CNLR 229 ...... 42

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Radaich v Smith (1959) 101 CLR 209...... 78 Randwick Corporation v Rutledge (1959) 102 CLR 54...... 2 Re Ninety Mile Beach [1963] NZLR 461 ...... 14, 101 Re Ninety Mile Beach, (1957) 85 Northern MB 126...... 79 Re Nisbet and Potts' Contract [1905] 1 Ch 391...... 155 Re Nyungah People (1996) 132 FCR 54 ...... 4 Re The Lundon and Whitaker Claims Act 1871 (1872) 2 NZCA 41...... 14 Rhode Island v Massachusetts 37 US 657 (1838) ...... 35 Sakariyawo Oshodi v Moriamo Dakolo [1930] AC 667...... 195, 204 Sampi v Western Australia [2005] FCA 777...... 62, 66, 67 Sandhurst Trustees Ltd v 72 Seventh Street Nominees (1998) 45 NSWLR 556...... 100, 153 Scott v Nixon (1843) 3 Dru & War 388...... 155 Seminole Nation v United States 316 US 286 (1942) ...... 36 Shetland Salmon Farmers Assoc v Clyde Navigation Trs 1991 SLT 166 ...... 159 Skeetchestn Indian Band and Secwepemc Aboriginal Nation v Registrar of Land Titles, Kamloops [2000] BCCA 525 ...... 206 Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 ...... 95 Smith v Brown (1702-05) 2 Salk 666 ...... 40 Smith v Lerwick Harbour Trustees (1903) 5 F 680, 10 SLT 742 ...... 159, 160 Spooner Oils Ltd v Turner Valley Gas Conservation Board [1933] SCR 629 ...... 193 St Catherine's Milling & Lumber Co v Queen (1888) 14 AC 46 15, 30, 43, 108, 115, 127, 128, 129, 130, 132, 137, 206 St Catherine's Milling and Lumber Co v Queen (1887) 13 SCR 577 ...... 15, 128 St Mary's Indian Band v Cranbrook (City) [1997] 2 SCR 657 ...... 107 Stead v Carey (1845) 1 CB 496...... 180, 181, 182 Stoney Creek Indian Band v Alcan Aluminum [1999] 1 CNLR 192 ...... 216 Strother v Lucas 37 US 410 (1838) ...... 197 Sunmonu v Disu Raphael [1927] AC 881 ...... 47, 74, 131, 204 Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321 (CA)...... 162, 165 Te Runanganui o te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 .21, 137 Te Teira Te Paea v Te Roera Tareha [1902] AC 56 ...... 195, 200, 201 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 ...... 14, 29, 33 Tee Hit Ton Indians v United States 348 US 272 (1955) ...... 19, 20, 26, 27, 196, 197 The Proclamations Case (1610) 12 Co. R 74 (KB)...... 173 Tyson v Smith (1838) 9 Ad and E 406 ...... 81 United States v Atlantic Richfield Co 435 F Supp 1009 (D Alaska 1977) ...... 196, 197 United States v Cook 86 US 591 (1873) ...... 143 United States v Gemmill 535 F 2d 1145 (1976)...... 25 United States v Joseph 94 US 614 (1876)...... 114 United States v Klamath and Moadoc Tribes of Indians 304 US 119 (1938)...... 19 United States v Loughrey 172 US 206 (1898) ...... 77 United States v Paine Lumber Company 206 US 467 (1907) ...... 98 United States v Percheman 32 US 51 (1833)...... 33 United States v Shoshone Tribe 304 US 111 (1938) ...... 19, 26 United States v Tillamooks 392 US 40 (1946)...... 19, 20, 24, 27, 142, 196 United States v Wheeler 435 US 313, 326 (1978)...... 17 United States v Winans 198 US 371 (1905) ...... 20 Van Ness v Pacard 2 Pet 137 (1829)...... 40 Vanzant v Waddel 10 Tenn (2 Yet) 260 (1829)...... 54 Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 ...... 172 Walker v New South Wales (1994) 182 CLR 45...... 12

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Walsingham’s Case (1573) 2 Plowd 547 ...... 151 Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory [2000] FCA 923.4, 68, 73, 113 Washington v Fishing Vessel Assn 443 US 658 (1979) ...... 79 Western Australia v Commonwealth (1995) 183 CLR 375 [Native Title Act Case] 33, 34, 53, 95, 151, 166, 167, 175, 176, 178, 179, 181, 182, 183, 189, 191, 192, 193, 210, 218 Western Australia v Ward (2000) 99 FCR 316 ...... 63, 96 Western Australia v Ward (2002) 213 CLR 1. 4, 5, 12, 25, 47, 49, 56, 57, 63, 66, 67, 69, 70, 72, 76, 77, 82, 84, 86, 87, 93, 94, 95, 99, 102, 111, 168, 169, 170, 173, 176, 177, 179, 187, 189, 190, 191, 192, 209, 210, 212, 216, 222 Whata-Wickliffe v Treaty of Waitangi Fisheries Commission CA73/04 [30 June 2004] (NZCA) ...... 29 Wheeler v Baldwin (1934) 52 CLR 609 ...... 155, 156 Wi Parata v The Bishop of Wellington [1877] 3 NZ Jur 72 ...... 14, 30, 160, 199 Wik Peoples v Queensland (1994) 49 FCR 1 ...... 96 Wik v Queensland (1996) 187 CLR 1 .. 5, 43, 45, 48, 62, 63, 74, 96, 97, 105, 111, 124, 134, 135, 136, 138, 148, 149, 150, 151, 152, 158, 167, 168, 169, 175, 176, 177, 178, 179, 181, 187, 188, 189, 191, 193, 194, 219, 222, 225 Williams v City of Chicago 242 US 434 (1917)...... 21 Williams v Lee 358 US 217 (1959)...... 17 Williams v Morley (1824) 2 B & C 910...... 170 Wilson v Anderson (2002) 213 CLR 401...... 2 Wily v St George Partnership Banking (1999) 84 FCR 423 ...... 95 Wongatha People v Western Australia (No 9) [2007] FCA 31...... 85 Worcester v Georgia 31 US (6 Pet) 515 (1832).... 17, 18, 26, 30, 40, 42, 114, 115, 116, 142, 143, 163 Yanner v Eaton (1999) 201 CLR 351 ...... 97, 98, 170, 188 Yarmirr v Northern Territory (1998) 82 FCR 533...... 79, 85

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STATUTES Aboriginal Land Rights (Northern Territory) Act 1976 (Cwth) ...... 69, 74 Alaska Native Claims Settlement Act 1971, 43 USC §§ 1601-1629a...... 25, 27, 197, 217 Australian Courts Act 1828 (UK), 9 Geo IV c83...... 38 Commonwealth of Australia Constitution Act 1900 (UK)...... 52, 98, 209 Constitution Act 1867 (UK) ...... 22, 127 Constitution Act 1982 (Can)...... 22, 26, 217 Constitutional Act of 1791 (UK), 31 George III c.31...... 38 Crown Lands Alienation Act of 1861 (NSW)...... 193 English Laws Act 1858 (NZ) ...... 38 General Allotment Act 1887 (US) (Dawes Act) ...... 20, 21 Gifts for Churches Act 1811 (UK), 51 Geo 3 c.115 ...... 174 Indian Act 1876 (Can) ...... 21 Interpretation Act 1984 (WA)...... 38 Land Title Act, RSBC 1996, c.250...... 206 Land Titles of Validation Act 1994 (Vic)...... 4 Lands Acquisition Act 1906 (Cwth)...... 173 Maine Indian Claims Settlement Act 1980, 25 USC §§ 1721-1735 ...... 217 Maori Fisheries Act 1989 (NZ)...... 29 Maori Land Claims Adjustment and Laws Amendment Act 1904 (NZ)...... 201 Minerals (Acquisition) Ordinance (NT) ...... 170 Mining Act 1904 (WA) ...... 170 Mining Act 1906 (NSW)...... 172 Mohaka and Waikare District Act 1870 (NZ) ...... 200 Moore-Street Improvement Act 1890 (NSW)...... 193 Native Exemption Ordinance 1844 (NZ)...... 42 Native Land Act 1909 (NZ) ...... 21, 215 Native Land Court Act 1886 (NZ)...... 201, 203 Native Lands Act 1865 (NZ) ...... 20 Native Title (New South Wales) Act 1994 (NSW)...... 4 Native Title (Queensland) Act 1993 (Qld)...... 4 Native Title (South Australia) Act 1994 (SA)...... 4 Native Title (Tasmania) Act 1994 (Tas) ...... 4 Native Title Act 1993 (Cwth) 3, 4, 5, 33, 34, 46, 47, 53, 60, 95, 96, 111, 151, 167, 173, 175, 176, 178, 189, 191, 192, 218, 223, 235 Native Title Act 1994 (ACT)...... 4 Native Title Amendment Act 1998 (Cwth) ...... 5, 173, 237 New South Wales Act 1823 (UK), 4 Geo IV c.96...... 43 New South Wales Court Act 1787 (UK), 27 Geo III c.2...... 43 New Zealand Constitution Act 1852 (UK) ...... 82 New Zealand Settlements Act 1863 (NZ)...... 200, 203 Ngai Tahu Claims Settlement Act 1996 (NZ) ...... 25 Parramatta Friendly Societies' Hall Site Vesting Act 1904 (NSW)...... 193 Pouakanui Claims Settlement Act 2000 (NZ)...... 25 Property Law Act 1974 (Qld) ...... 153 Public Lands Acquisition Ordinance 1923 (Nigeria) ...... 204 Queensland Coast Islands Declaratory Act 1985 (Qld)...... 2, 51, 166, 175, 210, 218 Quia Emptores 1290 (UK)...... 151 Racial Discrimination Act 1975 (Cwth) 2, 8, 49, 51, 52, 53, 55, 56, 57, 166, 175, 194, 209, 210, 212, 218, 220, 222, 229

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Resident Magistrates Act 1867 (NZ) ...... 42 Royal Proclamation of 7 October 1763, RSC 1985, App II, No 1 ..... 15, 26, 113, 115, 117, 128, 129, 161, 217 Sources of Laws Act 1981 (NT)...... 38 State Land (Titles and Traditional Usage) Act 1993 ...... 53 Statute of Tenures 1660 (UK) ...... 151 Statute of Wills 1540 (UK) ...... 151 Supreme Court Ordinance 1923 (Laws of Nigeria) ...... 82 Tauranga District Lands Act 1867 (NZ) ...... 203 Te Ture Whenua Maori Act 1993 (NZ)...... 200, 215 Territorial Sea Contiguous Zone and Exclusive Economic Zone Act 1977 (NZ)...... 171 Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ...... 4 Trade and Intercourse Act 1790, 1 Stat 137 [Nonintercourse Act]...... 18, 113, 114, 217 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (NZ)...... 29 Treaty of Waitangi Act 1975 (NZ)...... 12, 13, 25, 39, 113, 116, 199 US Constitution ...... 19, 27 Validation (Native Title) Act 1994 (NT) ...... 4 Waikato Raupatu Claims Settlement Act 1995 (NZ) ...... 25 Water Act 1992 (NT) ...... 170

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