Aboriginal Land Rights in Australia: From the M abo Decision to the Native Title Act 1993

This article deals with recent developments in situation of Australia's indigenous popula­ tion, in particular with the impact of the Australian High Court's historic 1992 Mabo decision on Aboriginal land rights and the Labor govemment's Native Title Act 1993, introduced sub seq uently as a direct con seq uence of the court's ruling. After briefly surveying present trends in Aboriginal social, economic and cultural developments (1.), I will outline the legal position of Aboriginal Australians before Mabo (II.) and explain the backgound, core elements and some effects of the Mabo ruling (ill.). Part IV contains an exposition of the central features of the Native Title Act 1993; the wider political implica­ tions of the Mabo debate are analysed in the concluding part (V.). I have tried to strike a fair balance between the presentation of the historical context, an exposition of the legal detail and political analysis in order to present the material, much of it hard to get by outside Australia, in a way pertinent to a broad range of interests.


Aboriginal self-organisation aided by the govemment and by growing outside support, particularly from the Australian arts scene, have helped to create an institutional basis for the dernands of the Aboriginal people and to bring the issue of
was also rightly perceived by Aboriginal rights carnpaigners as the key to unlocking the whole system of bias against Aborigines, which had its roots in the legal mechanism through which the British had incorporated the Australian continent into their empire at the end of the 18th century.
When James Cook landed in Botany Bay in 1770 he decided that the level of civilisation of the natives he encountered did not make meaningful negotiations over cession of land possible. This assessment decided the future legal status of the indigenous population for worse, for it implied the legal classification of the Australian lanchnass as terra nullius, or uninhabited land, making all indigenous inhabitants subjects of the British crown. Conse quently, British law alone pevailed in all legal relations, including those among Aborigines. Had Cook, who was in fact quite sympathetic towards the indigenous Australians and admired their -in the phrase of the day -"uncorrupted" way of life, negotiated with the tribesmen he encountered in even the most rudimentary fashion, the Aborigines' customary laws and traditions (including their concept of land title) would have prevailed as residual law at least in those areas in which the Crown did not explicitly legislate.7 For one thing, Cook's somewhat arbitrary classification meant the factual expropriation of the indigenous population. lt also implied that native Australians would not be regarded by Australian law as as a distinct ethnic and cultural entity for 150 years. Before "the" law they were treated just as all other white, yellow, red, brown or black subjects of the British crown. Consequently, no means of arbitration in the event of conflict between Anglo-Saxon common law and traditional Aboriginal norms existed; enforcement of the law was there fore in fact synonymous with the subjugation of the Aboriginal population. 8 Since even the regulation of inter-aboriginal affairs now became a matter for the British parliament (and later the Australian states and the Australian federation) traditional pattems of norm-setting and social regulation among Aborigines were eroded and often destroyed, contributing much to the breakdown of Aborginal society.
In the 1980s efforts were increasingly made to rectify the deficits of the past. In 1986 the Australian Law Reform Commission published a report recommending the incorporation of Aboriginal customary laws into the Australian legal system. However, the commission's report was largely ignored by the public, a fact which prompted sceptic comments on the likelihood of change in the foreseeable future. 9 After its 1987 general election victory Prime Minister Hawke's Labor govemment made a somewhat half-hearted attempt to address the question of reconciliation between indigenous Australians and European settlers in a basic document referred to as 'Treaty", or "makaratta", but this approach was even tually abandoned.10 lt was therefore left to the courts to find ways to assess and redress the wrongs of the past; this in itself being indicative of the.willingness of white Australia to stand up to its history .. The "Treaty" -approach was thus abandoned at a time when the United Nation's Working Group on Inidgenous Peoples was embarking on a comprehensive study on the potential utility of "treaties, agreements and other constructive arrangements between inidgenous peoples and states". The working Group's final report, submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1993, stressed the value of such arrangements. The reaction of Aborigines to this fai lure was forcefully expressed in the song "Treaty " by the Aboriginal popgroup Yothu Yindi: "Weil I heard it on the radio/ and I saw it on the television / Back in 1988 / All those politicians / Words are easy, words are cheap / Much cheaper than our priceless land / But promises can disappear / Just like writing in the sand" (Y olhu Y indi: "Tribal Voice", Mushroom Records 1992). 11 At the time Queensland, now part of the Australian federation, was a separate British colony.

A "Judicial Revolution"
On 3 June 1992 the Australian High Court ruled, with a 6 to 1 majority, that the Murray islanders had "native title to, and are entitled as against the whole world to the posession, occupation, and use and enjoyment of the lands of the Murray islands. "12 This truly historic ruling amounted to nothing less than a "judicial revolution" in Australia l3 , for its aban donment of the legal principle of terra nullius implied the ousting of the concept on which modern Australia had been founded and on which she had rested for more than 200 years.
The public's unease about this lost certainty was not alleviated by the strong words with which the court denounced the past treatrnent of indigenous Australians as a "conflagration of oppression and conflict which was ... to spread across the continent [after 1788, H.M.K.] to disposess, degrade and devastate the Aboriginal people", who faced "d ep rivation of the religious, cultural and economic sustenance which the land provides" and were left as "intruders in their own homes". Australian law, Justice Brennan concluded, should not be "frozen in an era of racial discrimination"14 .
Apart from this general insight, the court was tilted against terra nullius by the ability of the plaintiffs to provide valid and conclusive evidence in regard to two crucial aspects: First, they were able to demonstrate beyond reasonable doubt a continuous attachment to the land in question since before its annexation by Queensland in 1879. Second, the Murray islanders could prove that their community posessed a system of traditional laws and customs that included the notion of land ownership and predated annexation. Of probably decisive importance was a contemporary rep<>rt by A. C. Haddon, a Cambridge anthropo logist, who had visited the Murray islands twice in 1889 and 1898. Haddon had explicitly concluded that the annexation by Queensland had not made an impact on the islanders' traditional notion of property.15 The f actual basis upon which terra nullius rested had thus been exposed as a fallacy: the untested assumption that the indigenous population of Australia consisted merely of nomadic hunters and gatherers incapable of an y "civilized" utterances.

From Terra NulliustoNative Title
The core of the Mabo decision was the replacement of the doctrine of terra nullius with the concept of native title, i.e. the acknowledgrnent of the existence of "some form" of Abori ginal land rights. This caused considerable disturbance in the (non-aboriginal) Australian public because the extent to which native title would warrant factual land claims by Abori gines remained completely unclear and Mabo was -maybe unsurprisingly -perceived primarily as a potential threat. Rumours circulated that countless average Australians now faced eviction from their own front lawn and that Aborigines would now claim the site of that national symbol of Australia, the Sydney Opera House.
Confusion, however, was by no means restricted to the general public. Constitutional lawyers and politicians alike were at a loss to foretell the implications of the Mabo decision on the Australian legal and political system alike. Although the concept of "native title" itself is weil established in Anglo-Saxon comrnon law17, its application leads to a number of practical difficulties.
Native title does not, for instance, encompass the unrestricted ownership contained in a freehold title. Rather, it involves "a continuation of the type of interests held in land before sovereignty was ac.quired by the (British) Crown"18, i.e. its extent is determined by the traditional laws and customs of the respective indigenous population. For this reason, native title may include a whole array of rights, such as right to posession of the land, right of access (e.g. to sacred sites), right to hunt, gather and fish on the property, use of the land for ceremonial purposes or the right to use the water flowing through or springing from the land. lt may even include a right to the physical integrity of the land, thus implying a right to exclude mining.19 Even the High Court Justices were not in agreement in regard to whether native title constituted a proprietary right conveying exclusive ownership of land or whether it merely had to be regarded as a personal, usufructuary right -a crucial difference, in particular with 17 In British common law, naturally imbued with feudalistic principles, ownership of land is derived from a legal title granted by the Crown, which, as sovereign of the land, is (and remains) holder of the ultimate, or "radical' ', title. Annexation of new territories is synonymous with the Crown' s acquisition of sovereignty over these territories and hence it's acquisition of the radical title. In the case of the annexation of settled land, this does not per se mean extinction of (native) title existing under the old law. In the case of unihabited land (or terra nullius), however, a native title, by definition,cannot exist and the Crown is free to grant secondary titles, freehold or leasehold, over whatever part of the new territory she pleases without first having to extinguish an existing native title.
respect to the important question of how native title might be extinguished The court openly admitted that it saw no satisfactory and at the same time practicable way of incor porating native title into the system of Anglo-Saxon land law. lnstead, the court accepted "the inappropriateness of forcing the native title to conform to traditional common law concepts", and suggested "to accept it as sui generis or unique".20 However, three elements distinguish native title from other forms of land title: Native title may not be transferred to holders outside the circle of traditional holders without being extinguished (unless such transfer is possible under the applicable tradi tional laws and custorns in the first place) Native title is a collective, not an individual title. lt can only be claimed, and held by, a community of indigenous inhabitants.
Native title can be extinguished by the Crown without right to compensation, if other laws are not contravened (e. g. the Racial Discrimination Act 1975 (Cth.), which in fact stipulates that compensation must be paid -see below)

The Scope of the M abo Decision
Although the High Court's decision to overtum terra nullius in Mabo and others v. The State of Queensland [No. 2) initially met with an enthusiastic response from the Aboriginal community, some doubts lingered as to the relevance ofMabo to the Aborigines' cause.
One possible reservation derived from the fact that Torres Strait Islanders, to which the Murray islanders belong, are of Melanesian descent and ethnically quite distinct from the Aboriginals of the Australian mainland. Moreover, the fact that they inhabit islands made it relatively easy for Murray people to unambiguously define the territory they claimed and prove their continuous attachment to it Third, it was sufficient for the Murray islanders to establish their continuous attachment to the land since 1879 (the year of the islands' annexation by Queensland) because their islands had not been claimed as part of Australia by the British Crown in 1788. Finally, the case of the Murray islanders seemed comparati vely strong because their concept of property in many ways corresponded with European thinking (for instance land could be bequeathed or Jet).
For mainland Aboriginals, however, it appears much more difficult to conclusively prove their continuous attachment to a clearly specified area of land. The very nature of their habitat, the vast and deserted areas of central Australia, contravenes most efforts to fulfil the legal criteria set by common law and the courL To them, the vastness of the land in most cases made the exact delineation of neighbouring territories superfluous. Moreover, the arid climate necessitated a certain degree of nomadic life. Mainland Aboriginals will also generally not be able to provide contemporary written evidence of their laws and customs, as was the case with the Murray islanders. As a consequence, they need to rely on oral history, which might be inadmissible before court as hearsay. lt was this statement in particular, which prompted the Commonwealth govemment to introduce comprehensive legislation in order to pre-empt any Mabo-style claims on the Australian mainland.  While recognition is one thing, protection of native titles is another. The Act stipulates that land grants made after 1 January 1994 will not extinguish native title, the so-called "non extinguishment principle" (section 238). In the case of conflict between past grants and native title the grants will prevail until they expire, after which native title will again have full effect (The non-extinguishment principle will not apply when title holders choose to give up their native title (section 21) or the land is acquired by the government under compulsatory acquisition legislation (section 23( 3)b)). The Act provides a legal mechanism to validate past Commonwealth and State acts (clauses 13 and 18), i.e. to make them "non discriminatory" in line with the norms of the RDA, which will take precedence over the Native Title Act (section 7).

Category C and D past acts (sections 15(l)(d), 231 and 232) cover mining leases (category C) and all other grants by the Commonwealth such as licences and perrnits etc. (e.g. for fishing or hunting -category D). If validated by the Commonwealth or by the states (pursuant to Commonwealth legislation), mining leases will not extinguish
native title, but native title is subject to the lease for the term of the lease and any legitimate renewal. Licences, permits etc. will not extinguish any native title, such titles will be subject to the non-extinguishment principle of section 223.

Chart 1: Validation of past grants affecting native title
The Native Title Act 1993 stipulates that future acts over native title land can only be done if it is a " pe rmissible future act'' (defined in section 235). A future act over native title land is permissible if it were permitted over "ordinary title land" (meaning generally freehold land) and affects native title holders in the sarne way that it would affect ordinary title holders, or puts native title holders in the same position as ordinary title holders (section  5)). An example for a permissible future act is the grant of a mining interest. Such grants can be made over freehold land, so they can be made over native title land as well.
Other future permissible acts are those carried out under Compulsory Acqusitions Acts. In effect, native title will thus only be able to be extinguished by agreement with native title holders or lmder through compulsory acquisition. There is also an important distinction between "offshore" and "onshore" places: while future acts pe rtainig to onshore places are pe rmissible only with regard to the relevant' qualifications listed above, future acts in offshore places are pe rmissible without qualifications and can be done even if that place is subject to native title (section 235(8)) -an important qualification in view of the future exploitation of submarine ressources. The criteria for " pe rmissible future acts" must be met by legislation from 1 July 1993 and as of 1 January 1994 by all other acts and grants.

Arbitration
The principle of arbitration is the guiding idea behind the Federal Govemment's Mabo legislation.26 Over and above the procedural rights of ordinary title holders, registered native title holders and registered claimants will -"in recognition of the s pe cial attachment that Aboriginal people and Torres Strait lslanders have to their land" -be given s pe cial rights of negotiation with respect to some perrnissible future acts (  Chart 3: Claim for determination of native title by National Native Title Tribunal (NNTT)

Existing State or Territory bociies will serve as arbitral bodies if they comply with the criteria set by the Act and have been recognised by the Commonwealth Minister respon sible (sections 27 and 251
). There will thus be no strict necessity for the Commonwealth to impose its arbitral system where a State or Territory system dealing with grants exists which gives native title holders a right to negotiate equivalent to that granted under the Native Title Act 1993. For the remainder of the arbitration cases, the Act proposes to set up a National Native Title Tribunal (NNTT). The NNTT will also deal with uncontested claims to native title and for compensation conceming the Commonwealth, and it will be able to inquire into any issue in relation to native title referred to it by the Commonwealth minister. Contested claims for a determination of native title or for compensation will come before the Federal Court. which is given jurisdiction in native title matters (part 6 of the Act).

C omp ensaJion
lt is important to note that in Aboriginal customary law land could not be bought and sold.

Criticisms of the Native Title Act 1993
Criticism of the the Native Title Bill and Act has been widespread and harsh from the very beginning. Despite the fact that the Labor govemment took nine months to work out its details, consulting closely with the representative bodies of the Aboriginal and Torres Strait Islander communities, the opposition imrnediately denounced the proposed bill as "a constitutional nightmare", "unworkable" and "a lawyers' picnic". Deliberations ofthe bill in the Senate, where the Labor government depcnds on votes from the Green Party and the Australian Democrats, lasted for more than seventy hours before the prime minister personally struck a deal with the Greens which ensured passage of the bill and enabled the govemment to guilliotine debate. In all, more than one hundred amendments were proposed. The Opposition made a point of re jecting all amendments regardless of content, even those considered to be " pr o-industry". In the words of the Leader of the Opposition, Dr John Hewson, "this is disastrous legislation, it can't be im pr oved'' 28 . Hewson argued that the Act infringes upon fundamental rights of the States and that the creation of at least three new bureaucracies (the NNlT, the Native Title Registrar and the Land Fund) will be inefficient, unnecessary and indicative of the govemment's "jobs for the boys"-policy.
The opposition 's unreserved disapproval has been echoed by the farmers' lobby and by the mining industry in particular, who fear protracted, difficult and costly negotiations with native title holders under the new regime. Nevertheless, representatives of the National Farmers' Federation (NFF) eventually gave cautious support to the legislation, since the inclusion of pastoral leases in category A past acts gave them "a reasonable degree of certainty that there would be very little change in relation to their current land tenure" 29 . Mining leases, however, will be subject to the non-extinguishment principle, and the Australian Mining lndustry Council (AMIC) persistently resisted the bill, calling it "a confused mess"30.

Some Perspectivesonthe Future
However Court action, the withholding of cooperation by the States would necessitate the introduc tion of a whole new federal administrative system to handle native title. The Federal Court's resources will already be stretched to the limit if the new regime functions as set out in the Act. 32 An optimistic, albeit somewhat cynical prognosis might thus conclude that the best possible outcome would be for the Act to stimulate voluntary co-operation of the kind described above for sheer fear of massive bureaucratic interference.
As a next step, the government will have to present the comprehensive social justice package it has promised to Aborigines. The National Aboriginal and Torres Straits Islanders Land Fund provided for in the Act (section 201) and inaugurated on 1 July 1994 is the starting point for this project. lt is intended to help disposessed Aborigines who do not benefit from the Native Title Act to buy land and manage it "in a way that provides economic, environmental, social or cultural benefits to them". In many ways, the land fund and the social justice package will be more important to the vast majority of Aboriginal Australians than the Native Title Act which, after all, deals mainly with the legal nitty gritty of land title validation. The Keating government has promised that Aborigines will be consulted extensively in the drafting process and has announced plans for a "National Reconciliation Conference" later in 1994 to "look at ways of increasing the participation of indigenous people in the nation's economic life and safeguard their culture." 33 A number of more general conclusions transcending the wrangle over legal detail, short term political advantage and economic benefit emerge from the Mabo debate. At a time 3 1 The Bulletin, 2.11.199 3 , p. 16 f. 3 2 "Onus is now on the Liberal Party politically", Canberra Times, 24.12.199 3 . 33 Sydney Moming Herald, 17.11.199 3 . when extemal developments, economic insecurity and a loss of old certainties in general are already forcing a review and -possibly -redefinition of the Australian national identity, the High Court's decision represents a severe challenge to the Australian seif from within. At the threshold to the third millenium Australia is facing the difficult task of coming to terms with its relative economic decline vis-a-vis the neighbouring "tiger" states, the worst recession since the 1930s and the foreseeable end of the social, economic and cultural monopoly of the Old World settlers through Asian immigration. Prime Minister Keating is determined to abolish the still powerfill symbol of the Queen as head of state and wants to make Australia a republic by the year 2000. He has already called Australia "an Asian country", expressing as much the facts of geography as the necessity to redirect Australia's trade flows. Nevertheless, this was a hold remark in a country that officially pursued a "White Australia" policy until the early 1970s.
Where does this leave Australia's Aborigines? Mabo has undoubtedly boosted most Abori gines' sense of identity, possibly even given some a sense of purpose. But socially, econo mically and politically they are still wealc and will remain weak for a long time to come. True, the Native Title Act and the social justice package (when, and if, it comes) offer Aborigines prospects undreamed of twenty or even ten years ago.Too many of them, however, will first have tobe put in a position to leam how to grasp these opportunities. This process alone might weil take a generation or two. Last but not least, Aboriginal politics is as much dominated by vested interests and beset by politicking and in-fighting as white politics.34 General experience suggests that the sudden influx of big money and the creation of new buraucracies will usually not help to eradicate such phenomena.
For the present., much of the answer therefore depends on how non-Aboriginal Australians will interpret the end of the doctrine of terra nullius. Will they regard it as a natural and overdue step towards a necessary redefinition of what "Australia" means, and undertake a collective effort to empower Aborigines to take their due place in Australian society? Or will those who already feel "encircled" by "aliens" succumb to some kind of "stab in the back"-mentality that could split Australian society? In order to overcome the divisive potential contained in the issues surrounding Mabo it will also be necessary for the Federal Govemment and the States to find a compromise which safeguards the States' rights and minimizes bureaucratic intervention on the one hand while not leaving any loopholes for a continued tacit discrimination of Aborigines under the pretext of states' soverei gn ty. For the Federal govemment and the States (even some States) to engage in protracted "consti tutional warfare" cannot be the way forward in an issue as important as this.
But maybe one should be careful not to ov eremphazise the many insecurities that presently beset Australia. Australians still have many positive things to look to. Theirs is a rich country in terms of both natural and human resources. Its colonial heritage comprises many aspects weil worth preserving, not least a functioning parliamentary democracy -a positive feature not shared by many neighbouring states. The Australian approach of the "Fair Go" has great integrative potential and now onlyneeds to be extended to native Australians.
In any case, the date by which progress will have to be evident has already been set: In little more than five years the eyes of the whole world will be on Australia when the Olytnpic summer games will be held in Sydney. But that -if it is not inappropriate to quote Rudyard Kipling, the avowed imperialist, in this context -is a different story.