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

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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
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