Author:	Janice Gray BA, DipEd, MA, LLB (UNSW) Senior Lecturer, University of Technology, Sydney
Subjects:	Common Law (Other articles) Native title -- Australia (Other articles) Property - Law and Legislation (Other articles)
Issue:	Volume 9, Number 3 (September 2002)
Category:	Refereed Articles

Paper presented at the Australasian Law Teachers' Association annual conference hosted by Murdoch University School of Law, Perth, Western Australia September 29 - October 2 2002.

Contents

• Introduction
• Background
• Judicial divergence on the nature of native title
• Indicia of property and their relationship to native title
• Difficulties with the proprietary approach
• Compensation and a proprietary analysis
• Native title as sui generis
• Native title as a 'bundle of rights'
• Where to from here?
• Conclusion
• Notes

Introduction

1. The aim of this paper is to examine whether or not native title is a proprietary right. Unlike other forms of title,[1] native title has only been recognized by the common law since 1992 when the landmark case Mabo v Queensland (No 2) was handed down.[2] Owing both to the brevity of its existence and the complexity of the concepts underpinning it, there is still debate and a degree of uncertainty surrounding how native title is most appropriately characterized. This debate continues amongst both the judiciary and legal scholars.

2. Mabo v Queensland (No 2) failed to offer one conclusion on the question of the nature of native title. Indeed it was variously described native title as 'proprietary',[3] 'personal',[4] 'usufructuary',[5] 'sui generis'[6] as affording a 'permissive occupancy',[7] and perhaps as 'possessory'.[8] More recently is has been described as being a 'bundle of rights'.[9]

3. This paper will examine briefly the alternative characterizations to the proprietary one but ultimately its main focus is an examination of whether or not native title is most appropriately described as proprietary in nature.

   Background

4. Until Mabo (No 2) Australian law was based on the precept that with the acquisition of sovereignty came ownership of all the land.[10] This left no window for the common law to recognize pre-existing Indigenous law through the medium of native title. Mabo (No2) altered that situation by finding that radical title, rather than absolute beneficial ownership, was a concomitant of sovereignty. Hence where native title was not extinguished through the means set out in Mabo (No 2) (and subsequent case law and legislation) it survived.[11] This meant that native title could and did, in certain circumstances, survive the acquisition of sovereignty.

5. In Mabo (No 2) the Court found that the common law of Australia recognized a form of native title, the origins, content, nature and origins of which, were grounded in the customs and traditions of Indigenous people.[12] It concluded that the 'rights and interests in land possessed by the indigenous inhabitants of the territory' existed long before the relevant laws of England were brought to Australian shores and that they 'survived the change in sovereignty'. [13]

6. The Court also found that native title was ordinarily, although not exclusively a communal title and that membership of a group was determined, according to Brennan J, on the basis of 'biological descent'.[14] Further, changes to the practice of customs and traditions were found to be acceptable if a 'traditional connection with the land [was] substantially maintained.'[15]

   Judicial divergence on the nature of native title

7. As noted above, there was judicial divergence in Mabo (No 2) on the question of the nature of native title.[16] Although it is plain that the nature and incidents of native title are referable to Indigenous customs and traditions, there have been various attempts to equate native title with known common law rights, particularly proprietary rights.[17] At other times they have been equated with personal or usufructuary rights. This is not surprising, given that the task of recognition is made easier if the unknown is equated with the known.[18] Yet, there are difficulties in using all these characterizations. Perhaps in recognition of these difficulties Deane and Gaudron JJ in Mabo (No 2) observed that 'the preferable approach ...is to recognize the inappropriateness of forcing ...native title to conform to traditional common law concepts.'[19]

8. Yet, support for at least some native title interests to be characterized as proprietary gained acceptance as a result of Brennan J's words in Mabo (No 2) where he stated that,

   [w]hether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature; there is no other proprietor.[20]

9. That he specifically referred to 'a traditional proprietary communal title'[21] at another point is also a clear indication that he intended at least some incidents of native title to be characterized as proprietary. Further, it is worth noting that international cases such as United States v Alcea Band of Tillamooks 1[22] and Delgamuukw v British Columbia[23] indicated that Aboriginal rights may be regarded as proprietary in nature.[24] Clearly, such a characterisation affords the right important status in any hierarchy of rights because proprietary rights receive a higher level of protection than personal rights and as such are enforceable against the whole world.[25]

10. Support for a proprietary analysis of native title can also be seen in Toohey J's position, in Mabo (No2).[26] He suggested that, in regard to extinguishment, native title should be treated in the same way as a proprietary interest, when he required that any extinguishment by inconsistent grants or appropriation, be evidenced by clear and plain legislative authority.[27] Further, his finding that 'the Meriam people may have acquired a possessory title on annexation' also supports a proprietary analysis of the rights of Indigenous people.[28] Common Law Aboriginal title being a form of possessory title would result in Indigenous people being seised of a fee simple interest, which is a proprietary interest.[29]

11. Yet Toohey J's reasoning also offered some support for the proposition that traditions and customs mediated through native title may not resemble any common law rights at all, proprietary or otherwise when he stated,

    [I]t would defeat the purpose of recognition and protection if only those existing rights and duties which were the same as, or which approximated to, those under English law could comprise traditional title; such a criterion is irrelevant to the purpose of protection.[30]

12. That native title may have a different nature according to the different circumstances in which it arises, is another interpretation available from Brennan J's words in Mabo (No2).[31] There he seemed to imply that native title is for some purposes proprietary but not necessarily proprietary in all circumstances. In referring to the interests of the Meriam people whose rights were being assessed, he stated that 'as a community, they held a proprietary interest in the Islands.'[32] Later however, he suggested that there might be some flexibility more generally regarding interpretation of the nature of native title when he said, that native title may be

    'protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence; whether proprietary or personal or usufructuary in nature and whether possessed by a community, a group or individual.'[33]

13. Pearson appeared to rely on Brennan J's approach, at least partially, when he developed a distinction between the external and internal aspects of native title.[34] According to Pearson, the external aspect refers to the relationship of the community as a whole to the non Indigenous legal system (an aspect discussed in Mabo (no2)[35] while the internal aspect relates to the rights of individuals and subgroups within the overall community ownership. Some of the rights comprising the internal aspect may be proprietary in the Anglo sense and some may not: these are matters for Indigenous law. Pearson's approach deals with the proprietary question summarily by simply characterizing the external aspect as proprietary. This approach has its appeal and it may well be the case that ultimately the High Court adopts this reasoning but as yet the Court does not appear to have reached this point.

14. The potential flexibility of the manner in which native title is characterized is evident in Brennan J's discussion of remedies, where he seemed to suggest that legal and equitable remedies may support native title whether that title is characterized as proprietary, personal or usufructuary. His approach permits appreciation of the fact that traditions and customs, when mediated through native title, may resemble a range of different common law rights. Of course, as noted above, it may also be possible that Indigenous customs and traditions do not resemble any common law rights at all. Where the latter is the case an understanding of such difference may not yet be available. We will need to explore more creative means for giving expression to Indigenous customs and traditions if they are unfamiliar to the common law.[36]

15. The divergence of judicial opinion regarding characterization was evident again when Toohey J suggested that native title's nature was variable. He stated in the Wik decision [37] that at one end of the spectrum, native title rights may 'approach the rights flowing from full ownership at common law.' On the other hand they may amount to an entitlement 'to come onto the land for ceremonial purposes, all other rights in the land belonging to another group.'[38]

    Meanwhile, Gummow J stated in the same case that,

    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....At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein.[39]

16. These extracts seem to point to the range of possibilities available in response to the question, what is the nature of native title? Yet the argument is open that decisions, such as the Wik decision,[40] suggested that some resolution of the question has already been achieved. This is so because in that case the majority agreed that an inconsistent grant could only extinguish native title if legislation manifested a clear and plain intention for extinguishment to result from the grant. In coming to that view, the majority dealt with native title as though it were proprietary in nature.

17. The position was, however, clouded by Brennan CJ maintaining his earlier position and concluding that native title could be extinguished by Crown grant with or without legislative authority. Yet Brennan J's view on this issue, in both Mabo (No2) and Wik,[41] did not square with another of his conclusions that native title was a right to be 'fully respected'. According to Bartlett, '"full respect" suggests that native title, representing an exclusive relationship to land, is a proprietary interest.'[42]

18. More recently in the Commonwealth v Yarmirr the majority found the exercise of inquiring into the existence of native title should be conducted outside a proprietary framework. It stated that,

    Because native title has its origins in traditional laws and custom, and is neither an institution of the common law nor a form of common law tenure, 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.[43]

19. Perhaps the warning contained in these words should be extended to a discussion of the nature of native title once native title is established. In those circumstances, too, it may also be advisable to avoid the 'language of the common law property lawyer'.

    Indicia of property and their relationship to native title

20. In order to discuss more fully whether some aspects of native title may be satisfactorily described as proprietary in nature, one approach is to consider the question of what constitutes a proprietary interest? The right to use and enjoy, the right to alienate and the right to exclude are commonly seen as indicia of property.[44] Clearly no incidents of native title are capable of demonstrating strict compliance with all these indicia because native title cannot be alienated outside the group.[45] On this analysis one may be tempted to conclude that no native title rights could possibly be seen as proprietary in nature. Yet, such a conclusion would be too simplistic in the light of post Mabo (No2) case law both in Australia and Canada. It would also be inappropriate in light of the fact that even in regard to the common law there does not appear to be a requirement that all these indicia are present at any one time. For example, a non-assignable lease is treated as property even though it cannot be transferred to another.[46]

21. Returning to the first indicium of a proprietary right (the right to use and enjoy), it is quite clear that incidents of native title may involve using and enjoying the land to live, hunt, fish and gather for example.[47] They may also involve use for ceremonies. The Canadian Supreme Court in Calder v Attorney- General of British Columbia spoke of 'a right to occupy the lands and to enjoy the fruits of the soil, the forest and of the rivers and streams' while the Privy Council in St Catherine's Milling and Lumber Co v R saw native title as extending to the fruits and produce of the land and to hunting and fishing.[48] Both Ward v Western Australia[49] and Hayes v Northern Territory [50] at first instance, determined that the content of native title included the right 'to possess, occupy, use and enjoy' the land as well as the right to control access, to use and control the use of resources and to maintain places which held significance for the Indigenous community and to protect cultural knowledge.[51] On appeal in the Ward case, the High Court stated that where

    'native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate, or sufficient, to express the nature and extent of the relevant native title rights and interests by using those terms.'[52]

22. This statement leaves open the proposition that at times, there will be circumstances where native title will be able to satisfy the 'using and enjoying' component. Further, in the Commonwealth v Yarmirr 'using and enjoying' was found to extend to the use of water for the purpose of passage from place to place and for the preservation of cultural and spiritual beliefs and practices.[53] Most difficulties with the 'the right to use and enjoy' tend to arise not in relation to its existence but rather because the right to use and enjoy native title is inconsistent with the exercise of common law rights under a non Indigenous legal system.[54]

23. Secondly, the right to alienate deserves consideration. It raises more immediate problems concerning the characterization of native title as proprietary. As observed earlier, the right to alienate has traditionally been seen as an important aspect of property. However, some common law interests have been classified as proprietary despite the fact that there have been restrictions imposed on their alienability. Examples include entailed estates (eg fee tail male, fee tail female and fee tail special) and property the alienation of which was affected by the Rule Against Perpetuities. This would suggest that restrictions affecting alienability do not necessarily result in an interest being regarded as non proprietary. Hence, although native title's alienability is very restricted (it can only be alienated within the group or surrendered to the Crown) it does not automatically follow that it should be denied proprietary status on this basis.

24. By contrast, according to Deane and Gaudron JJ in Mabo (No 2), this very lack of alienability was one of the reasons to conclude that common law native title 'invites analogy with the kind of entitlement to use or occupy the land of another which confers no interest in the land and constitutes a "mere equity."'[55] Even where these judges observed that 'the rights under common law native title can ... approach the rights flowing from full ownership' they resisted a proprietary analysis and chose to see native title as sui generis.[56] In the Canadian context, a lack of alienability has also led to an Aboriginal right being termed 'personal'.[57] However, the Supreme Court of Canada has sought to clarify the limited sense in which Aboriginal title should be seen as personal. Lamer CJ stated that, "[t]his Court has taken pains to clarify that Aboriginal title is only 'personal' in...[the sense that it is inalienable] and does not mean that Aboriginal title is a non-proprietary interest which amounts to no more than a license [sic] to use and occupy the land and cannot compete on an equal footing with other proprietary interests'.[58]

25. In the Australian context, Brennan J when considering whether native title was lost at the time the Crown acquired sovereignty, stated that,

    It would be wrong, in my opinion, to point to the alienability of land by that community and, by importing definitions of 'property' which require alienability under the municipal laws of our society, to deny that the indigenous people owned their land.[59]

    He went on to suggest that a failure to classify native title as proprietary could lead to curious results. For example, if native title, were not proprietary, and if native title were extinguished by the Crown, he thought it seemed rather odd that the new interests which the Crown created in place of native title, would, in fact, be proprietary.[60] In other words, he was uncomfortable with a proprietary interest blossoming out of soil that had previously only been able to yield a lesser interest.

26. On the question of the third indicium (the right to exclude) Indigenous people have long been able to demonstrate that as traditional communities they excluded others from hunting, fishing and gathering, for example.[61] The fact that they often invited other traditional groups to pass over their land or partake of its fruits for ceremonies or festivities, in no way denies the exclusivity element. According to Brennan J exclusive possession of land demonstrates a proprietary interest, at least in regard to the question of what will survive a change in sovereignty.[62]

27. In the Commonwealth v Yarmirr the question of exclusive possession was revisited, with the first instance finding that it was not possible to have the co-existence of exclusive possession with other non-exclusive rights being over-turned by the High Court.[63] The issue of exclusive possession is clearly still a live one for McHugh J because in Western Australia v Ward[64] he re-asserts a position he took in Wik v Queensland[65] that '[p]ossession that is not exclusive is a contradiction in terms, for the right of general control and exclusion is central to the concept of legal possession.'[66] It should be noted, however, that McHugh J was in dissent in Ward's case.

28. In conclusion, many incidents of native title would look as if they were able to satisfy reasonably easily two of the three conventional indicia of property. In regard to the third (alienability), as noted above, there appears to be evidence to suggest that lack of satisfaction of this element will not necessarily preclude a finding of a proprietary interest. To recapitulate, even in the common law, a lack of or restricted alienability has not precluded a proprietary characterization.[67]

29. Yet, it may ultimately be the case that considering the indicia of property on one hand and assessing whether native title interests meet them on the other, is an inappropriate or flawed approach in itself. Gleeson CJ, Gaudron, Gummow and Hayne JJ imply that this may be the case when they state that '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. To break the expression into its constituent elements is apt to mislead.'[68] They continue, warning that it would be wrong to invite attention to

    the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.[69]

30. Application of this logic suggests that breaking down the expression to 'use and enjoy; to exclude; and to alienate' into its constituent elements may also be misleading.

    Difficulties with the proprietary approach

31. Whilst it is possible to make an argument for the proposition that native title, at least in some circumstances, may be seen as proprietary in nature, there are several difficulties in employing a proprietary framework as the sole means of characterizing native title. Some of these difficulties may be termed cases of 'square pegs and round holes'. Where native title does not easily fit the proprietary paradigm it would seem inappropriate to force it to do so, irrespective of the benefits that might flow from such forcing.[70]

32. In Western Australia v Ward Gleeson CJ, Gaudron, Gummow and Hayne JJ appeared concerned that native title not be treated as a proprietary interest in the form of a fee simple estate if that were not the most appropriate way of dealing with it. [71] They commented that 'it is a mistake to assume that what the NTA refers to as 'native title rights and interests' is necessarily a single set of rights: relating to land that is analogous to a fee simple'. [72] It is possible to extrapolate from this statement that sometimes native title may equate with a single set of interests such as a proprietary interest but at other times that characterisation may be too limited. [73] Indeed, the High Court clearly warned against over simplifying the relationship of Indigenous people to the land by commenting that '[i]t is wrong to see Aboriginal connection with the land as reflected only in concepts of control to access of it.' That is 'to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between community and the land very differently from the common lawyer.'[74]

33. These words highlight the need to 'step outside the square'. They recognise that native title is perhaps not best understood simply in terms of a common law proprietary analysis, many of the difficulties of which are outlined in the sections on the indicia of property and compensation. The High Court's approach is far from new in this regard.

34. The move away from a simple proprietary analysis of native title has been under discussion for some time. It has been evident both in case law and in academic scholarship.[75] To demonstrate, the simple equation of native title with a proprietary right has drawn criticism from academics such as Webber, who states,

    Indigenous title is frequently discussed as though it were simply another kind of interest affecting land, slipped into the structure of Australian property law.[76]
    The implications are thoroughly captured by determining the content of indigenous law according to the rules of indigenous customary law, examining to what extent the title has been extinguished by prior acts of the non-indigenous sovereign, and then enforcing the remaining interests. That view of indigenous title, is however, altogether too limited, not just because a more ambitious interpretation should be preferred as a matter of policy, but because it misunderstands what the recognition of indigenous title necessarily involves. Indeed, it mischaracterizes the very nature of indigenous title as a legal doctrine.[77]

35. Webber argues that native title has a significance 'beyond the bounds of land law' and that Mabo (No2) 'initiates a process of mutual adjustment that will continue long into the future.'[78] Further, Sweeney observed that 'caution needs to be exercised to avoid classifying the incidents of Aboriginal title in terms of English property law concepts.'[79] Caution against this characterization is suggested because such an approach is said to lead to a process of 'rights reductionism' and 'involves the delegitimation of Indigenous rights'.[80]

36. Bearing this in mind, it is perhaps useful to interpret Indigenous traditions and customs through the medium of native title, concluding that native title is sui generis although many of its incidents are synonymous with common law rights, some of which are personal and usufructuary while others are proprietary. At other times native title bears little or no synonymy with common law rights. [81] Hence, it may be possible to see native title extending beyond proprietary understandings but at the same time having the scope to incorporate them within its ambit where applicable. In reflecting on the richness and uniqueness of native title, it has been said that,

    Native title involves concepts that are not traditionally the domain of the Australian courts, such as collective rights, legal pluralism, and issues of competing sovereignty. It is an area where judges cannot always draw on familiar ways of understanding the issues before them.[82]

37. Presumably though, it is evidence of a synonymy with property rights that has led some authors to link traditional customs and traditions to property in discussions which analyse the nature of native title.[83] Yet, as observed there may be risks in relying too heavily on a proprietary framework. If we are too determined to image Indigenous traditions and customs in the proprietary mould, we may run the risk of losing sight of their real meaning, that is, of their essence. The process of equation may result in customs and traditions being converted into something that they are not, when the aim is simply for them to find reflection in the common law. Therefore, it would seem important that the 'recognition space' of native title should preserve and not destroy, diminish or dilute, the uniqueness of Indigenous customs and traditions.

38. The majority[84] of the High Court indicates that it recognizes these potential problems when it comments that:

    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. Yet that is required by the NTA. 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. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to land only in terms familiar to the common lawyer.[85]

39. Through these words the High Court also appears to be acknowledging the 'straight jacket' that the Native Title Act 1993 has imposed on the interpretation of Indigenous rights. A discussion of that Act follows later.

    Compensation and a proprietary analysis

40. Despite the difficulties of characterizing native title as proprietary and despite the importance of looking to more creative understandings of native title there is still some pressure to characterize native title as proprietary for expedient reasons. Two expediencies that are relevant are:
    (a) proprietary rights are known, familiar and convenient. Common understandings therefore follow and;
    (b) proprietary interests rank very prominently in the hierarchy of rights.

41. In regard to (b) it is relevant that extinguishment of a proprietary right triggers constitutionally enshrined compensation. Indeed s 51 (xxxi) of the Commonwealth Constitution speaks of '[t]he acquisition of property on just terms from any State or person for any purpose in respect of which Parliament has power to make laws.' That this provision is to be interpreted liberally can be seen in Clunies-Ross v Commonwealth.[86] Case law also suggests that the term 'property' is to be interpreted free from 'the artificial refinements of any particular legal system.'[87] In fact Dixon J pursued this point quite vigorously in Bank of New South Wales v Commonwealth where he stated that,

    I take Minister of State for the Army v Dalziel to mean that s 51 (xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized in law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but that it extends to innominate and anomalous interests.[88]

42. Dixon J's words, therefore, suggest that native title may fall under the definition of property relevant to s 51(xxxi) of the Constitution.[89] It would also appear that native title's lack of alienability outside the group would not prevent it from being characterized as proprietary for the purposes of the s 51(xxxi).[90]

43. No doubt, where native title is extinguished, constitutionally enshrined compensation on 'just terms' would reduce injustice resulting from its loss. That desire to compensate in order to 'do justice' is observable in the Native Title Act 1993 where much of the logic for the validation of post 1975 grants was that they constituted property and therefore discrimination arose where no compensation was payable. Clearly, construing native title as a proprietary interest for the purposes of compensation results in very satisfactory moral and political outcomes but there still remains a problem with characterizing a right as proprietary if it does not sufficiently resemble a proprietary interest. It would be doctrinally unsatisfactory to characterize all rights comprising native title as proprietary, if they did not all amount to proprietary interests. Where native title rights, which are referable to Indigenous customs and traditions, reflect a synonymy with proprietary rights, the characterization is appropriate. But where native customs and traditions are not synonymous with proprietary interests under the common law, it would be legally problematic to mould those customs into the shape of proprietary interests merely so that they were recognized by the common law as native title rights and consequently compensation flowed on their loss. Gleeson CJ, Gaudron, Gummow and Hayne JJ seemed to warn against this tendency in the Commonwealth v Yarmirr.[91]

44. On one reading merely characterizing a right as proprietary so that desired political, social or moral outcomes are achieved could be said to taint the operation of the law and invest the judiciary with too much legislative influence.[92] On this issue McHugh J, quoting Posner J, said that courts 'have no authority to "provide a solvent" for every social, political or economic problem or wrong.'[93] He went on to quote himself and Gaudron J in Breen v Williams where they stated that '[in] a democratic society, changes in the law that cannot logically or analogically be related to existing common law rules and principles are the province of the legislature.[94]

45. On another and perhaps more compelling reading of the situation, it may be that it is important to avoid characterizing native title as proprietary in circumstances where it bears little or no resemblance to a proprietary interest, because the distortion that is done to it in the process of re-shaping and re-inventing, may foreclose other more imaginative understandings of the traditions and customs which underpin native title.

46. Therefore, if at times native title is more, personal, usufructuary or indeed something else altogether, rather than proprietary, perhaps that should be respected, even if it means that the consequences are harsh, particularly regarding compensation.[95] Where a failure to trigger compensation results, another solution will need to be worked out if the political will is to redress Indigenous loss of rights. Such a solution may involve a legislative response which offers redress for loss of rights that do not fit the proprietary framework or it may involve revisiting the question of extinguishment, for example.[96] Ultimately, a movement away from an approach that says 'if there are serious questions of indigenous rights, they should be squarely addressed and exhaustively defined, so that political and economic life can proceed in full certainty of what those rights entail' could be embraced. Such a re-positioning may well embody a commitment to a process of 'mutual adjustment' which requires the redefinition of the relationship between Indigenous and non Indigenous communities.[97]

47. Understandings different from those available at common law need to be embraced if native title is to be successfully interpreted and accommodated.

    Native title as sui generis

48. If native title is not necessarily best described by reference to common law rights such as proprietary rights perhaps brief consideration needs to be given to whether or not the sui generis classification is more apt.

49. Pearson has argued for the characterisation of native title as sui generis because : '(1) it is inalienable; (2) it is a communal right which has an internal dimension regulated by Indigenous law and custom and; (3) ....it is subject to extinguishment by the valid exercise of Legislative and Executive powers in circumstances where other titles to land are not.'[98] Despite the fact that the appearance of some of these characteristics in other contexts (eg entailed estates) has not forced the relevant rights and interests to be re-classified as sui generis, that might not be an argument for precluding such a classification in this context. Perhaps it is the unique combination of these characteristics that permits the right to be best seen as sui generis. That native title is effectively a means or space for recognition by the common law of Indigenous customs and traditions may be another good reason to characterize it as sui generis. Native title's role of assisting Indigenous customs and traditions to find reflection in the common law is seemingly unique.

50. Strelein has observed that a characterisation of the native title as sui generis revealed 'an explicit acknowledgement that native title should not be understood by reference to common law property rights.'[99] Perhaps she is correct but it is certainly arguable that native title may be both sui generis and, at times, embrace rights resembling proprietary and personal rights. Arguably native title may also embrace rights that bear little or no similarity to proprietary or personal rights. Seen this way the terms sui generis and 'proprietary' are not necessarily mutually exclusive.

    Native title as a 'bundle of rights'

51. Finally, another possible classification is that native title is a 'bundle of rights'. Most commonly the 'bundle of rights' template only extends to the inclusion of a range of different personal rights. However, it would appear that it is at least possible to conceive of 'the bundle' being constituted by personal, usufructuary and /or proprietary rights.

52. The 'bundle of rights' approach to native title gained greater currency following the majority decision of Beaumont and von Doussa JJ in the Full Federal Court appeal in Ward v Western Australia.[100] There, those judges stated that even where native title recognized an entitlement to exclusive possession, it remained a personal right rather than an interest in land.[101] They claimed support for their position in the High Court decision of Fejo v Northern Territory where Kirby J referred to 'the bundle of rights which we now call native title.'[102] Whilst the 'bundle of rights' approach may have gained favour with the High Court in Western Australia v Ward,[103] that Court, a year before, in The Commonwealth v Yarmirr, seemed concerned to leave open the possibility that once established, native title may have 'some or all of the features which a common lawyer (sic) might recognize as a species of property.'[104] Nevertheless, the majority also warned against simply identifying native title as property when it commented,

    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 recognized as items of 'real property'.[105]

53. The appeal to the High Court in Western Australia v Ward has confirmed that Court's attraction to the 'bundle of rights' approach.[106] The majority explained it by stating that the metaphor drew attention to the fact that 'there may be more than one [native title] interest' and secondly that there 'may be several kinds of rights and interests in relation to land that exist under traditional law and custom'. Further the Court continued, commenting that '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.'[107] However, as the focus of Ward's case in the High Court was more on the extinguishment of, rather than the nature of, native title, the latter issue was not definitively addressed there.

54. One argument against the 'bundle of rights' approach is that it may place a greater onus on Indigenous people to prove their native title than would the alternatives. This is because it would seem easier to demonstrate that an Indigenous system of law, customs and traditions operated and continues to operate albeit in a modernized way, rather than having to establish the identity of each right making up the bundle as well as having to establish the pedigree of each right in the bundle (ie proof of continuity and its connection to traditions and customs). This calls for a high degree of specificity particularly where the native title interest is something less than the right 'to possess, occupy, use and enjoy.'[108] Another criticism of the bundle of rights approach is that it treats native title as simply a composite of disparate rights rather than being linked to a cohesive system of native law.[109]

    Where to from here?

55. Rather than seeing native title simply in terms of known common law rights and interests it may be useful to conceive of native title in a more creative fashion, seeing it as representing a point of interface between two different legal systems; the common law on one hand and Indigenous traditions and customs on the other. [110] Guidance on how we might approach this intersection was spelled out in Western Australia v Ward.[111] There the majority (excluding Kirby J who wrote a separate judgement) stated that the location of the intersection between these two legal systems should be determined as a result of careful attention being paid to the content of traditional law and custom and the way in which rights and interests existing 'under that regime find reflection in the statutory and common law.'[112]

56. Perhaps, however, the most challenging and rewarding aspect of trying to develop more creative responses to native title issues relates to the process by which traditions and customs that, to date, seem foreign and unrecognizable, may be interpreted. It is suggested that such an interpretation could possibly occur as a result of the process of 'mutual adjustment', referred to by Webber.[113]

57. It would also appear that Kirby J in Western Australia v Ward entered into the on-going dialogue which nourishes and sustains the process of 'mutual adjustment' when he began to explore the way in which Dreaming Beings located at certain sites are narrated in song cycles, dance rituals and body designs. Stylistically, he approached the discussion through questions that he sought to answer himself. They included 'Would such a claim [to cultural knowledge] be one 'in relation to' to land or waters?' [114] He concluded by stating, 'If this cultural knowledge, as exhibited in ceremony, performance, artistic creation and narrative, is inherently related to the land according to Aboriginal beliefs, it follows logically that the right to protect such knowledge is therefore related to the land for the purposes of the NTA.'[115] Further, he also engaged in a dialogue with other members of the bench who were unable to find that cultural knowledge amounted to a form of native title because, in their view, to do so would be to acknowledge a right 'akin to a new species of intellectual property.'[116] He rejected their reasoning by commenting on the inadequacy of established intellectual property laws to deal with the kind of protection sought. Kirby J embraced the breadth that a classification of native title as sui generis may permit. Indeed he stated, that '[t]here has been little need to elaborate the well established principle that native title is sui generis and should not be restricted to rights with precise common law equivalents.'[117]

58. The prospect that the Court might further explore this issue is encouraging. It opens our minds to the embracing of understandings different from those referenced to established common law rights. Ultimately, it may be that such an approach will assist the development of a more successful interpretation and accommodation of native title.

    Conclusion

59. In conclusion, it is felt that while a proprietary paradigm may be appropriate for understanding the nature of native title in some circumstances, that approach has disadvantages. This is so despite the fact that employment of a proprietary model may be expedient; at times yielding morally satisfactory outcomes, particularly in relation to the issue of compensation.

60. The disadvantages of a proprietary approach generally relate to:

    (a) the doctrinal impurity that may result from square pegs (native title) being forced into round holes (common law proprietary understandings); and, perhaps more significantly
    (b) the foreclosure of opportunities for better understandings through more creative approaches than the proprietary model may allow

61. With these limitations in mind, this author is hopeful that the courts will further explore the sui generis nature of native title; a concept that to date, according to Kirby J, has received little judicial consideration because native title rights claimed have generally related physically to land or waters in a manner analogous to common law property concepts.'[118] He concludes that as a result there has been little need to tease out the sui generis nature of native title.

62. The sui generis classification appears to have the potential to incorporate personal and proprietary aspects of native title in circumstances where Indigenous customs and traditions are sufficiently synonymous with the common law's understanding of personal and proprietary rights. And yet, the classification also appears to provide the opportunity for rights that are not synonymous with common law rights but which may be interpreted through an 'on-going dialogue' and a process of 'mutual adjustment', to be recognized. If the sui generis classification is as broad and accommodating as it appears, the result may well be that new life is breathed into native title. Instead of attacking 'skeletal principles' the embracing of a broader understanding of native title may in fact mean that a pulmonary by-pass takes place, which permits life blood to reach native title and sustain it.[119]