Author:	Alex Reilly BA, LLB, LLM (UBC) Senior Lecturer, Macquarie University Division of Law
Subjects:	Aborigines - land tenure (Other articles) Native Title Act 1993 Australia (Other articles)
Issue:	Volume 7, Number 1 (March 2000)
Category:	Current Developments

Contents

• Introduction
• Content
• Philosophical Framework
• Notes

Introduction

1. Richard Bartlett's, Native Title in Australia is the first comprehensive source book on the law of Indigenous land title in Australia. The book is well structure and clearly written. Its publication is timely, though in many ways native title law in Australia is still in a formative stage. With the law changing so rapidly, it must have been difficult to decide when to go to print. The decision was made to wait for the High Court judgment in Yanner v Eaton,>[1] but not for reserved judgments of the Full Court of the Federal Court on appeals from the first three native title determinations, Yarmirr, Ward v WA, and Yorta Yorta.[2] These cases consider a number of fundamental questions on the nature and content of native title. Two of these appeal judgments have now been delivered.[3]

   Content

2. Native Title in Australia is largely descriptive of the development and current status of the law. It frames the discussion in an international context, drawing on comparisons from US and Canadian jurisprudence in particular. This is a major strength of the work. The analysis of the law was at all times clear and informative. However, I found the discussion remained more abstract then was necessary. The author relies mainly on statements of principle in judgments without providing factual examples to contextualise the principle. There are many factual examples in Ward and Yorta Yorta, which could have served this purpose.

3. The book consists of 7 Parts, 28 chapters and 585 pages. It is indexed by page and paragraph which makes it easy to navigate and will greatly facilitate the exercise of updating the text. Part 1 presents the political and legal developments leading to the phenomenon of native title, beginning with a legal history of dispossession of Indigenous people and the creation of Indigenous title elsewhere in the world, a discussion of Mabo and responses to it, the significance of Wik, and the Liberal Government response in the 10 point plan. I found chapter 2 on the Mabo decisions to be particularly helpful, clarifying persistent misconceptions on the High Court's ruling, which have arisen in subsequent case law. Chapter 3 describes the position of interest groups and major political parties in response to the Mabo decision, and the central compromises that were made in the drafting of the Native Title Act 1993 and the Native Title Amendment Act 1998. I was surprised at what political events Bartlett emphasised in this discussion. More information is provided on negative and misleading reactions to Mabo than on the details of the important compromises that took place in the Senate to secure the passage of the legislation.[4]

4. Allocating whole chapters to Wik (ch 4) and the 10 point plan (ch 5) seemed a heavy treatment considering the book revisits many of the same points in later chapters. Finally, Chapter 6 on the Constitutional Framework of Native Title seems out of place. It might have been better placed in Chapter 1 as part of the legal history peculiar to Australia, or even in Chapter 27 on questions of jurisdiction.

5. Part 2 (Nature of Native Title), Part 3 (Extinguishment and Validation) and Part 4 (Future Dealings) provide a comprehensive analysis of the native title legislation as it has developed so far in Australia. The analysis is clear and comprehensive. It is a valuable and easily accessible source of the law. Part 5 concentrates on particular issues of resource exploitation, minerals and resources (from an Indigenous and non-Indigenous perspective), and of rights over water and right to hunt and gather (from an Indigenous perspective). Although these chapters overlap with others, it was appropriate to isolate these important issues for separate and more detailed discussion.

6. Part 6 on Institutions and Jurisdiction is a very valuable inclusion in the book. The relationship between the National Native Title Tribunal and the Courts is central to the native title process and often misunderstood. Likewise it was important to explain the role of representative bodies. I was surprised not to find a chapter in Part 6 on the role of State, and to a lesser extent Federal, governments in native title claims. Governments have a duty to protect native title as a beneficial interest under the Crown, and they also often act as the main respondents in claims. What is, and what should be, the role of government in the native title process, how this role compares with the roles of government elsewhere, and what is the relationship of governments to representative bodies could have been profitably explored in a separate chapter in this Part.

7. Part 7, "Comparative" consists of one chapter. It is a curious inclusion in the book. It is not very comparative. Only in the last four pages does Bartlett reflect on what might be learnt from agreements and settlements in North America. These points might have been better made in Chapter 20 where the author discusses Agreements and Settlements in Australia. The bulk of the chapter provides detailed information about the process and results of negotiations in the US and Canada including detailed demographic information on Indian population numbers and proportion of land owned as a result of settlements in different states and territories. Very little can be made of this information on the North American process when the equivalent information is not available in Australia. A meaningful comparison needs to account for, amongst other things, the differences in the structure and organisation of pre-colonial Indigenous communities, early colonist relationships with the Indigenous people and the historical development in colonial law in each country. This is a complicated comparison, which probably requires more than a single chapter to deal with it appropriately.

8. Finally on content, there is considerable duplication throughout the text. The most extreme example is in relation to compensation. In addition to Chapter 21 on compensation, a discussion of compensation occurs in Chapter 2 on Mabo (No 2) decision, Chapter 12 on the Proprietary Nature of Native Title, and in Chapter 14 on Extinguishment at Common Law. In all four chapters, there is the same quotation from the judgment of Mason CJ and McHugh J in Mabo (No 2) on what the case determined in relation to compensation, followed by a discussion of the quote.[5] Other points of duplication include the discussion of Wik and Pastoral Leases in Chapter 4 and Chapter 14, and a discussion of the Future Act process in Chapters 18 and 22. This duplication might have been avoided through better cross referencing.

9. The criticisms I have raised here are due in part to the range of perspectives from which the author has attempted to cover native title law. Minor structural problems such as duplication are common to the first editions of many large source or text books. As the law matures, future editions are likely to focus on the content of the law, and its philosophical underpinnings at the expense of some aspects emphasised in the first edition such as the political context in which the law has developed and comparisons with other jurisdictions. This will make structural problems easier to rectify.

   Philosophical Framework

10. I now turn to what I see as a failing of the book. It is not until Chapter 7 that Bartlett attempts to provide a philosophical framework for the concept of native title. When a framework is finally provided, it does not position native title law within the broader debate on Indigenous land rights. There is either no, or inadequate, explanation of why the right of colonisers to occupy land in Australia is not questioned, or why the question of native title is not about Aboriginal sovereignty, or why the author chooses to frame the question of Indigenous title in terms of "equality" and "equality before the law", and not in some other way. Also, these and other terms, which are central to Bartlett's philosophical framework, are not adequately defined. "Equality" is set up as the test of just entitlement to land. Bartlett discusses equality in many guises. Equality is used descriptively. He discusses the "principle of equality", "simple equality", "substantive and formal equality". Equality is used prescriptively. He repeatedly criticises policy decisions or legislation for not providing "equality before the law"[6], or for tempering equality with regard to "pragmatic considerations"[7] or for providing only formal and not "genuine" equality.[8] Finally, the absence of equality is used pejoratively. "The denial of equality before the law to traditional land owners was made possible by the denial of equality in the electoral system of the state."[9]

11. To rely on the concept of equality, more space needed to be devoted to discussing the concept at the outset. It is not until Chapter 13.9 that there is an extended discussion of the meaning of equality before the law, and this discussion is confined to the (legal) distinction between formal and substantive equality in Mabo v Queensland (No. 1).

12. What is "equality before the law"? To whose law does the statement refer? If the statement refers to Indigenous law, then equality suggests all common law land titles are an unlawful encroachment on Indigenous land. Of course, the assumption is that the phrase refers to equality before the common law. If we accept this, there remains the question of what we mean by 'equality'.

13. "Equality is the most contentious word in the vocabulary of justice."[10] There are numerous types of equality, all with different requirements of justice: formal equality (equality of legal rights), liberal equality (equality of expectation or opportunity of those with the same abilities and aspirations regardless of their social class), substantive equality (equality of rights or opportunity taking account of the reasons why people might not be in the same position to have their ability or rights recognised), and absolute equality (equality based on need, regardless of culture, ability or environment). Also, when we talk of equality, we tend to talk in terms of there being equality "of" something. Rawls talks of equality of opportunity. Marx talks of equality of resources (in the sense that all should be treated equally according to need), feminists such as MacKinnon talk of equality of power, some natural law philosophers' talk of equality of human dignity. Which of these is relevant to native title, if any? How does each relationship to equality affect the approach to native title law? Such questions needed to be explored if equality was to be used as the philosophical framework for native title.

14. There are other frequently used terms, which required definition. At [12.6] Bartlett states, "The requirement [of a clear and plain intention to extinguish] is, of course, derived from the universal principles protecting interests against confiscation and expropriation." At [4.12], he suggests that the majority of the High Court in Wik used "universal principles rather than pragmatism". In these statements, the author seems to accept the existence of some higher legal order (of which pragmatism is not a part). What are these universal principles? Where do they come from? Do they derive from particular philosophical or religious traditions, from the common law or from international law? At [7.5], the author seems to suggest they are found in all three of these sources. Debates between Hobbes and Locke, or Hart and Devlin would suggest otherwise. Universal principles are highly contentious in legal philosophy. On another occasion, the author states "six justices of the High Court purported to favour equality before the law over pragmatism"[7.5]. It is not clear to me why pragmatism necessarily stands in opposition to 'equality before the law'. Might it not be considered pragmatic to afford "equality before the law"? To allay my confusion, I needed an explanation of what the author meant by pragmatism. In such an important academic text, precision of terminology is of great importance.