Author:	Alex Reilly BA, LLB, LLM (UBC) Senior Lecturer, Macquarie University Division of Law
Subjects:	Mabo and others v State of Queensland and Australia (Other articles) Native title -- Australia (Other articles) Property - Law and Legislation (Other articles)
Issue:	Volume 9, Number 4 (December 2002)
Category:	Refereed Articles

Acknowledgement: My sincere thanks to Jenny Clarke and Lisa Strelein for reading earlier drafts of this paper. All errors remain my own.

Contents

• Introduction
• The Scope for Change in the Common Law
• Mabo and the Common Law concept of native title
• Native Title at Common Law and under the Native Title Act
• Choices made by the High Court in Developing the Concept of Native Title
• The strength of title
• The nature of native title and the terms of translation
• The use of authorities from other former colonies of the Crown
• Conclusion
• Notes

Introduction

1. Mabo v Queensland [No 2] generated many debates over the extent to which, and on what basis, it had changed property law in Australia.[1] Some commentators understood the change to be profound, while others viewed it as simply aligning the law with an alternative body of established authority. Of the commentators who understood the change to be profound, some judged this to be an illegitimate disregard for established legal principles and an unlawful extension of the Court's law-making function.[2] Others viewed the change as an inevitable and natural process of accounting for past injustices to Australia's Indigenous peoples, and of bringing the law into conformity with contemporary human rights and with legal principles reflected elsewhere in the common law world. Jeremy Webber argued that an important part of the explanation for Mabo was to be found in regret over the terms of the past relationship with Indigenous peoples.[3]

2. Regret provided the motivation for a change to the common law - not to change would be to perpetuate an unjust failure of the common law to recognise and protect Indigenous relationships to land. Regret also influenced the form the change took - the previous discriminatory doctrine needed to be replaced with a doctrine which recognised the unique form and content of Indigenous relationships to land, and provided a means for this relationship to be reconciled with other legal interests in the land.

3. Regret is backward looking.[4] The motivation is to change a practice or relationship in the past that is unjust, and not to fully articulate criteria for future practices and relationships. Therefore, there is a further challenge of transforming a principle founded on regret into a sustainable and equitable doctrine for the future. In the case of the common law of native title, this required the High Court to develop the recognition of native title beyond the Mabo declaration. The task of development is more difficult than the initial declaration of a new principle, as it requires that the principle be developed free from the methods of thought and ingrained practices which led to the need for its articulation in the first place. This secondary process provides "an extraordinary challenge ... to the flexibility and imagination of the legal system".[5]

4. In this article, I argue that in the case law since Mabo, the High Court has not demonstrated the flexibility or the imagination required to transform the recognition of native title into a doctrine that confronts the intrinsic injustices to Indigenous peoples in Australian property law. If Mabo was founded on a jurisprudence of regret, opening up the possibility of a break from the past, the case law that has followed it, progressively closing off potential means to develop the new jurisprudence, marks a profound failure of the common law, a regrettable jurisprudence. To make out this case, I argue that High Court decisions since Mabo, most recently Ward v Western Australia, have unduly restricted the potential scope of native title.[6]

5. The history of the native title claim of the Miriuwung-Gajerrong people from trial in the Federal Court to appeal in the Full Federal Court and then the High Court exemplifies how the potential of native title has been restricted. At first instance, Justice Lee made a declaration of the existence of a broadly based native title to 'possess, occupy, use and enjoy' land in the determination area in addition to particular rights such as of access to and enjoyment of the resources of the area. These native title rights were held to be concurrent rights with the statutory rights of others in the determination area, but the exercise of native title rights was subject to regulation, control, curtailment, restriction, suspension or postponement by the statutory interests.[7]

6. The clear intention of a determination in this form was that the parties would negotiate the terms of their co-existence on the land within the framework of the order. The order confirmed the existence of concurrent rights and provided a mechanism for the resolution of any conflict arising in the exercise of those rights. Nearly four years later, the High Court held that native title was extinguished over a much more substantial part of the area claimed due to an extension of the rule of extinguishment, and where native title continued to exist, such as on pastoral leases under the Land Act 1933, the extent of native title rights was severely curtailed. In reaching this result, the High Court constructed native title as an interest in land that fitted neatly into the structure of Australian property law. The Court interpreted native title to be a narrow right, vulnerable to extinguishment by a wide range of prior Crown grants and reservations of land. These conclusions were not an inevitable development of the common law, nor were they due entirely to the concept of native title being overtaken by legislation. To reach this conclusion, the Court made particular choices as to the nature and strength of native title.

7. After the recognition of a new principle of law, there will inevitably be a refining of the principle. In the process of reconciling the principle with existing legal doctrines, some potential extensions of the principle will be exhausted, while others will be modified. But if the common law is open to evolution, as it must be to transform an expression of regret into sustainable legal principles for the future, there must be a reconsideration of existing doctrines, and possibly even a re-rendering of their forms. After Mabo, the High Court has not been prepared to consider how the existence of native title might have modified or extended existing doctrines, such as the doctrine of tenure. The Court has taken the simpler path of emphasising the vulnerability of native title to extinguishment in the face of the exercise of executive power under the Crown. With the principle of tenure not open to question, the Court has not had to develop ways to account for the incommensurable relationships to land of a grant-holder and a native title claimant group. Just as the relationship at settlement was prefigured by a (regrettable) assumption that the new colony could be settled according to law without taking account of Indigenous occupation of land, the relationship of native title to statutory grants is prefigured by an abstract rule of extinguishment that does not need to grapple with the accommodation of competing attachments to land.

8. I argue that there is scope in the common law for a much stronger concept of native title, and that having declared the existence of native title rights, the High Court had a responsibility to develop this concept in line with the principles of justice that motivated the initial recognition of native title in Mabo. Part One discusses the scope for change in the common law as members of the High Court have discussed it in relation to the law of native title. Part Two outlines the Mabo formulation of native title and what avenues it left open for the development of new principles of law. Part Three considers whether the Native Title Act has replaced the common law of native title, thus relieving the Court of the duty to further develop the common law. Part Four discusses the High Court's analysis of the strength and nature of native title. It argues that within the constraints of sovereignty and the skeleton of principle, there were alternative ways to interpret the strength and nature of title that would have provided it with greater protection from extinguishment. These alternatives are discussed as a series of choices faced by the High Court. To determine the strength of native title, the Court had to decide how vulnerable it was in the face of the assertion of sovereignty and in the face of inconsistent rights and interests in the land. To determine the nature of native title, the Court had to decide whether title was an underlying right to an area of land or a bundle of rights and interests on the land, and whether native title was based on the observance of traditional laws and customs, or on occupation of Country, or both. Finally, in choosing between the possible conceptualisations of title, the Court made a further choice about the relevance and applicability of overseas jurisprudence to the development of the Australian common law of native title.

9. The article concludes that to move 'beyond regret',[8] the High Court could and should have made different choices as to the strength and nature of title after Mabo; choices that would have resulted in an enlarged place for native title in Australian property law. Having failed to develop the common law concept of native title in the ways advocated, native title jurisprudence in Australia is indicative of the incapacity of the common law to adequately recognise Indigenous relationships to land in terms of legal rights, and represents the common law's part in the continuing legacy of the denial of Indigenous rights and of the dispossession of Indigenous people from their Country.[9]

   The Scope for Change in the Common Law

10. In Wik Peoples v Queensland, Gummow J attempted to articulate the potential for possible change within the declaratory theory of the common law. He began with a definition of Lord Radcliffe in Lister v Romford Ice and Cold Storage [1957] AC 555 at 591-2:

    No one really doubts that the common law is a body of law which develops in process of time in response to the developments of the society in which it rules. Its movement may not be perceptible at any distinct point of time, nor can we always say how it gets from one point to another; but I do not think, for all that, we need abandon the conviction of Galileo that somehow, by some means, there is a movement that takes place.

    For Justice Gummow, this passage of Lord Radcliffe expressed "a broad vision of gradual change by judicial decision, expressive of improvement by consensus, and of continuity rather than rupture".[10]

11. This interpretation is curious. Lord Radcliffe seemed to discredit the notion of a seamless common law marked by a discernible continuity, acknowledging instead that the connection between past decisions and present ones might to some extent be inexplicable. Given new factual circumstances, Lord Radcliffe envisaged a law that developed new rules to reflect the implications for society of those circumstances, without having to identify exactly how or when a change in the law occurred. The law's inability to trace its development did not undermine its authority.

12. Even accepting Gummow J's interpretation of Lord Radcliffe, it is necessary to take issue with it in its own terms. For Gummow J, 'continuity' rather than 'rupture' is of central importance. Only change that is gradual and follows a 'perceptible'[11] path back to the origin of authority of the law is consistent with the declaratory theory. It can be argued in the alternative that all change is necessarily expressive of both continuity and rupture. It is both backward and forward looking. Change is only change in relation to that which it has changed from, and in this sense is continuous. And change is only change if it in some way breaks from the past and results in something different, and in this sense has the characteristic of rupture. The real issue is the extent to which any change emphasises continuity or rupture, and consequently whether it is predominantly forward looking or backward looking.

13. Lord Radcliffe's invocation of the authority of Galileo in his explanation of the common law suggests a common method of change in both science and law. Both are based on reason. Both presuppose "the idea of order and stability in the world, the idea that the past repeats itself in the future."[12] According to Thomas Kuhn, a feature of the natural sciences is the process by which change occurs.[13] Change follows a cyclical pattern in which a theory takes hold, it is confirmed repeatedly until it takes the form of a 'paradigm', which is "the entire constellation of beliefs, values, [and] techniques . . . shared by the members of a given community".[14] Over time anomalies emerge in the paradigm, which lead to the creation of exceptions. The need for too many exceptions leads to a point of crisis, the emergence of new theories, and an eventual paradigm shift. Thus, the movement is one of gradual change until such change can no longer account for the weight of exceptions to the rule, at which point there is the replacement of one paradigm with another. Gummow J's interpretation of Lord Radcliffe in Lister emphasises only the early, gradual processes of change, leaving out the necessity of the more profound change suggestive of a paradigm shift. Another feature of a paradigm shift in the natural sciences is that it is followed by a process of reconsidering all existing doctrines to ensure they conform with the new paradigm.

14. Is the common law, like science, open to dramatic change when reason requires it? Or rather than take responsibility for this extent of change, must it defer to the power of the sovereign, and a skeleton of principle beyond which some change is not possible? What makes a judgment 'legal' is its conformity with a pre-existing authority, and this may differ from what makes it 'just' which is the impact of the judgment on the particular set of facts. The law requires a link to the past, whereas justice requires an imaginative, empathetic, reinvention of the rule to meet the present circumstances.[15] The dilemma for the law after Mabo was how intense a transformation could the law bear before it was no longer law, or before it ruptured and its basic forms and the grounds of its acceptance needed revisiting?

15. In Mabo, Justice Brennan suggested that the Australian common law was free to develop new principles, such as the concept of native title, as long as the principles were consistent with its historical foundations.[16] The limit to possible development of the common law was that it must not "fracture the skeleton of principle which gives the body of our law its shape and internal consistency".[17] Brennan J invokes the concept of the skeleton of principle throughout his judgment.[18] He sets up a tension between this concept and the demand that the common law accord, where possible, "with contemporary notions of justice and human rights".[19] It is not entirely clear what is the skeleton of principle that anchors the law, though it is clear that Brennan J considered the doctrine of tenure to be 'skeletal' in nature.[20]

16. Brennan J gives some indication of how the law might change in conformity with its skeletal principles. The law can be "modified to bring it into conformity with contemporary notions of justice, but it cannot be destroyed".[21] When a principle 'seriously offends' contemporary notions of justice, it must be questioned. Only if the rule [which offends justice] is an essential doctrine of the legal system and " the disturbance [from overturning it] would be disproportionate to the benefit flowing from the overturning" should the rule be maintained.[22] This final statement suggests that two requirements must be satisfied for maintaining a law which seriously offends contemporary notions of justice. One is the abstract test of its impact on the skeleton of principle. The other is a more pragmatic test of weighing the benefit and detriment to the community of maintaining the rule. Brennan J formulated this test to explain how it was that the Court was able to reject the rule of absolute Crown ownership of land in Mabo. However, Brennan J is not prepared to consider modifying or overturning the doctrine of tenure following the same requirements.

17. In considering the possibility of the suspension of native title rights, Justice North in the Full Court in Ward discussed the potential for change in the doctrine of tenure itself.[23] He described two aspects to this change. First, the doctrine of tenure is flexible and capable of accommodating extensive change. Second, the history of the law of property shows that the significance of the doctrine of tenure has been variable. He concluded that:

    The system of law which saw the growth of a concurrent system to take account of the demands of conscience continues today and is sufficiently flexible to accommodate the notion of [the suspension of native title rights]. Radical change has, thus, been a part of the development of property law. ... The various adaptations described in this section have accommodated changes more radical than those necessary to accommodate the concept of suspension of the rights and interests dependent upon the holding of native title for the duration of the existence of inconsistent rights and interests.[24]

18. Justices Gummow and McHugh have also expressed the potential scope for change in the law in broad terms both judicially and extra-judicially. Gummow J held in Wik that "there may be an explicit change of direction, where, in the perception of appellate courts, a previously understood principle of the common law has become ill adapted to modern circumstances." Also, it may emerge that the rationale of a particular legal principle "should no longer be supported. . . . In those cases, the perceived reason for change stems from alterations in the legal system itself."[25] Justice McHugh set out five reasons for the need for judicial law-making.[26] One of these is where existing principles are changed to reflect changing 'political and ethical ideas'. He placed Mabo in this category. In an earlier article on judicial law making, McHugh J stated,

    Acts of judicial law making have been known to set in motion a continuing process of reform. Even where the legislature deems the judicial solution inadequate, the process of reform has been initiated. A creative judiciary, therefore, has a contribution to make to democracy.[27]

19. Despite such assertions on the potential for change in the common law, the High Court has not been prepared to exercise such creativity in the development of the concept of native title from its original formulation in Mabo.

    Mabo and the Common Law concept of native title

20. In Mabo, the High Court declared that upon the assertion of sovereignty and the introduction of the common law into Australia, the Crown did not become the absolute beneficial owner of all the land of the new colony.[28] Instead, the Crown held a radical title to the land, which was burdened by the proprietary rights of the Indigenous peoples that derived from their continuing occupation.[29] Mabo opened up the possibility that, to the extent that Indigenous people still had a connection to land based on traditional laws and customs, this could form the basis of contemporary legal rights to their Country.[30]

21. These rights were not extinguished through the introduction of the common law into the new colony as had been originally believed, but were extinguished by subsequent acts of the new sovereign. Extinguishment took place "parcel by parcel to make way for expanding colonial settlement."[31] Mabo explained how this extinguishment had been achieved while leaving open the possibility that native title had survived on some Crown lands.[32] The extent of the survival depended on further developments in the law. Mabo did not require a reassessment of the legitimacy of all subsequent Crown grants of land since the time of the assertion of sovereignty. Nor did it confirm the complete legal dispossession of Indigenous peoples from their land. It navigated a path somewhere between these extremes. On the one hand, the implications of sovereignty and the demand for a coherent skeleton of principle in the law prevented a wholesale reappraisal of Australian land law. On the other hand, the demands of justice prevented a simple confirmation of the extinguishment of all Indigenous rights to land.[33]

22. The concept of native title demonstrates the confidence of the common law in its capacity to recognise and provide legal protection to relationships to land completely foreign to its own cultural foundations. The law did not simply categorise Indigenous relationships to land within the existing system of land tenures, but recognised their sui generis nature and their continued separate existence. This form of recognition required a different translation of Indigenous relationships to their Country into common law rights associated with those relationships. The majority in Mabo started with an acceptance in principle of a concept of native title, and left the nature of native title to be ascertained by reference to Indigenous laws and customs. In this way, the Court held that the common law could protect a range of Indigenous interests which Blackburn J had failed to recognise in Milirrpum v Nabalco because they were not 'proprietary' in nature.[34]

23. The decision of the Court in Mabo caused much political and academic debate about its impact on existing rights, the legitimacy of the Court's role in recognising the concept of native title 204 years after the common law entered Australia,[35] the prospect of native title delivering substantive rights to Indigenous Australians,[36] and the sustainability of the concept of native title.[37] The extent to which Mabo changed the law would influence its subsequent development. If it was a profound change that shifted the foundations of the law, future development would be based on these new foundations. If, on the other hand, the change was simply the correction of a misconception of how the common law had in fact developed since its entry into Australia, future development of the law might only require an accommodation of native title within existing rights and interests in the land.

24. In Mabo, the three lead judgments of Brennan J, Deane and Gaudron JJ and Toohey J express differently the degree to which Mabo represented a change in the common law. Justice Toohey simply chose between two inconsistent lines of authority that already existed in the common law in relation to the existence of Indigenous rights in newly acquired Crown territories, and declared which of them applied in Australia.[38] Toohey J's judgment was not, therefore based on regret, but on precedent.[39] For Brennan J, and Deane and Gaudron JJ, the recognition of native title required a modification of existing Australian common law over 100 years after the existing state of the law had been established in Cooper v Stuart.[40] However, the judgment of Deane and Gaudron JJ is not clear on whether it is overturning settled law. On the one hand, it expresses the need to overturn a settled doctrine, while on the other hand, it states that the doctrine they are overturning is "little more than bare assertion" in the four cases in which it was contained.[41] The judgments of Brennan J and Deane and Gaudron JJ also asserted the need to overturn the doctrine of 'terra nullius'.[42] Many commentators have argued that this 'overturning' of the doctrine of terra nullius as a precondition for the recognition of native title in the judgments of Brennan J and Deane and Gaudron JJ was purely rhetorical, as no such doctrine was ever invoked as a condition of settlement in the new colony.[43]

25. Justice Brennan explained at length how it was that established rules of the common law could be fundamentally changed to respond to this injustice.[44] The judgments of Brennan J and Deane and Gaudron JJ based their willingness to modify the common law on the extremity of the injustice to Indigenous people of their dispossession from their country.[45] In the face of the assertion of Indigenous rights to the land in Australia especially from the 1970s, in the face of Human Rights law, and in the face of a growing recognition of Indigenous land rights in other former British colonies, the common law in Australia was compelled to recognise that legal rights accompanied continuing Indigenous occupation of land. The recognition of Indigenous rights to the land was necessary to resurrect the common law as a source of law.[46]

26. If the common law could not recognize a relationship to land so physical, complex and grounded as that of Indigenous peoples' relationships to their Country, the disjuncture between law and justice would have placed in question the very foundation of the law. Having responded to the demands of justice and declared the existence of native title, the common law must be able to protect native title. Justice Brennan suggested that native title "may be protected by such legal and equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual".[47] Deane and Gaudron JJ and Toohey J discussed in more detail some of these potential remedies.[48]

27. In Wik, Justice Gummow interpreted Mabo as overturning a long held misconception of the state of the common law.

    The gist of Mabo [No 2] lay in the holding that the long understood refusal in Australia to accommodate within the common law concepts of native title rested upon past assumptions of historical fact, now shown then to have been false.[49]

    He described the impact of this correction of historical fact in terms that suggest it was a significant change. "To the extent that the common law is to be understood as the ultimate constitutional foundation in Australia, there was a perceptible shift in that foundation, away from what had been understood at federation."[50]

28. In contrast to Gummow J, in an article on judicial method, Justice McHugh interpreted Mabo as reflecting not only a correction of historical fact, but also as reflecting a change in the 'political and ethical ideas' of the time.[51] He likened the impact of Mabo to that of R v L in which the High Court overturned the presumption that upon marriage, a wife gave her consent to sexual intercourse with her husband.[52] This attributes to Mabo a more dramatic alteration of existing principle. If the analogy with R v L is apt, it might suggest that past grants of land which failed to take account of Indigenous rights to land must now be understood to do so. After all, a legal marriage entered into prior to the overturning of the presumption of consent to sexual intercourse is no longer subject to that presumption. If this reasoning follows, grants of land that failed to accommodate the common law land rights of Indigenous people ought now to be interpreted to make such an accommodation.

29. Whatever change in the law Mabo amounted to in its own terms, it established the groundwork, and indeed necessitated the future development of the common law. The main issue for subsequent courts was the extent of recognition that could be attributed to Indigenous land rights through the concept of native title in a way that responded to the demands of justice while remaining consistent with the principles 'which give the law its shape'.[53] Many questions about the nature and extent of common law native title and its relationship to other interests in land and waters were left to be clarified in future decisions, or through legislative modification of the common law. The judgments in Mabo offered the framework for an answer to these questions, but as many of the questions were unnecessary to answer in relation to the claim of the Merriam people over the Murray Islands, these statements were obiter dicta, and required a determination in subsequent cases.

    Native Title at Common Law and under the Native Title Act

30. Before considering some of the choices the High Court has made in developing the common law concept of native title, it is important to be clear on the relationship between the common law and the Native Title Act. The High Court has been called upon to consider whether the Act has altered or even replaced common law native title, or whether it simply supplements rights that already exist at common law. In recent cases, the High Court has been at pains to emphasise that the starting point of any inquiry into native title rights and interests must be the Native Title Act.[54] In Ward, the majority joint judgment made several comments that indicated the extent to which it relied on the Act in contrast to the common law. At paragraph [16], it stated:

    Much of the argument in the courts below, as in this Court, took as its starting point consideration of what was said in Mabo [No 2]. No doubt account may be taken of what was decided and what was said in that case when considering the meaning and effect of the NTA. . . . It is, however, of the very first importance to recognise . . . that the claims that gave rise to the present appeals are claims made under the NTA for rights that are defined in that statute."

    And at paragraph [25]:

    Yet again it must be emphasised that it is to the terms of the NTA that primary regard must be had, and not the decisions in Mabo [No 2] or Wik. The only present relevance of those decisions is for whatever light they cast on the NTA.

31. The majority in Fejo suggested that one of the purposes of the Act was to establish native title. "[The NTA] provides for the establishment of native title and recognises and protects it in the manner we have outlined."[55] The proposition that the NTA establishes native title rights derives from an interpretation of s223(1) of the Act which provides the definition of native title. Paragraphs (a) and (b) of s223(1) provide a statutory definition of native title which mirrors the words of Brennan J in Mabo [No 2].[56] Paragraph (c) adds a third part to the definition of native title that 'the rights and interests are recognised by the common law of Australia'. The direct reference to the common law in paragraph (c) led the majority joint judgment in Ward to conclude that paragraphs (a) and (b) of s223(1) do more than simply reflect the state of the common law, and may establish native title rights and interests in their own right. "There may be some laws and customs which meet the criteria in pars (a) and (b) of s223(1), but which clash with the general objective of the common law of the preservation and protection of society as a whole."[57] In Ward, the Court also seems to rely on the Act to determine fundamental questions relating to the nature of native title and the terms of its extinguishment that were still in dispute before the Court as a result of a split in the courts below.[58] For example, the Court held that native title is primarily a bundle of rights in the land and that it can be partially extinguished.[59]

32. Noel Pearson has argued strongly that the Native Title Act simply reflected the common law of native title.

    [In Ward], the High Court incorrectly . . . treated native title as a creature of the Native Title Act rather than understanding that this legislation was never intended to change the concept of native title at common law. ... I was present during the drafting of the 1993 bill and no one spoke of the act as in any way amending the common law definition of native title. . . The Act was merely intended to reflect the common law accurately, neither diminishing nor adding to its common law meaning.[60]

33. There are numerous indications in the Act itself that the common law is of fundamental importance to the determination of the nature and extent of native title rights and interests. In section 3, the first 'main object' of the Act is stated to be 'to provide for the recognition and protection of native title'. Significantly, there is no reference in the preamble to the Act establishing native title. It assumes native title already exists. The preamble to states that 'the rights and interests [of native title holders] under the common law of Australia need to be significantly supplemented." Again the reference to 'supplementing' rights suggests that the rights already exist, although it might also suggest a role for the Act in the establishment of rights that build on existing rights at common law. In s56 of the Act, 'common law holder' is defined to mean 'native title holder', and the two terms would seem to be used interchangeably throughout the Act.[61] If native title holders under the Act are the same as common law holders, this suggests that the Act views native title under the Act to be the same as native title at common law.

34. Even if the Native Title Act has established new native title rights or replaced common law native title in some respects, this does not remove the Court's responsibility to determine the nature and extent of native title at common law. First, as with any statutory rights, the courts rely on the common law to interpret key terms in legislation, and this is all the more pressing when an Act, such as the Native Title Act, closely mirrors the common law construction of rights. Second, any differences between the statutory position on the nature and extent of native title, and the nature and extent of native title at common law is important for a determination of the constitutionality of the Native Title Act and for the extent of rights to compensation that might arise under the Native Title Act or the Racial Discrimination Act. In relation to the constitutionality of the Native Title Act, if the High Court holds that the Act has extinguished common law native title, or has reduced the concept of native title to something less than the common law concept, the constitutionality of the Act, which relies for its validity on s51(xxvi), the race power, may be open to challenge.[62]

35. The scope of legislative power under s51(xxvi) is yet to be finally determined. In Kartinyeri, Gaudron and Kirby JJ both held, for different reasons, that the power of the Parliament to make 'special laws deemed necessary for the people of any race' was limited.[63] If a majority of the current High Court were to adopt the approach of either Gaudron J or Kirby J on the interpretation of s51(xxvi), and if it could be established that the Native Title Act falls outside those limits, then the Act would be invalid to the extent it was beyond power.

36. It is clear that the Native Title Act is drafted to parallel the common law very closely. There may, however, be some ways in which the Act alters the nature or extent of native title. For example, s223 of the Act defines "native title or native title rights and interests" as "the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters". In Mabo, Brennan J defines 'native title' as "the interests and rights of indigenous inhabitants in land, whether communal, group or individual". There are two differences in these definitions. First, in the Act, native title and native title rights and interests are treated as the same, whereas there is no indication of this in Brennan J's definition at common law. Second, under the Act native title rights and interests are in relation to land and waters, whereas in Brennan J's definition they are in land or waters. In Ward, the High Court upheld the decision of the Full Court of the Federal Court that native title is not an underlying title in land but a bundle of rights and interests in relation to land.[64] It is not clear, however, whether the High Court considers the Act to reflect the common law in relation to the nature of native title. If it does not, then there is an argument that the Act has diminished the concept of native title, and in this regard, might be open to a constitutional challenge. The Court's lack of clarity on how, if at all, native title under the Act differs from native title at common law means the Court has not itself considered possible discrepancies in the extent of rights at common law and under the Act, and has not provided a foundation in law for others to make a sensible comparison. Given that the Native Title Act relies on the race power for its validity and given that the scope of the race power is not finally determined, there is at least the prospect of a constitutional challenge to aspects of the Act. In these circumstances, the Court ought to be more explicit on the nature and extent of native title at common law.

37. Despite the continued importance of the common law concept of native title, in Ward the High Court only interpreted the extent of native title rights and interests under the Act. This approach saved the Court from addressing directly possible ways in which the common law concept of native title could have been extended. In what follows, I discuss several ways in which the Court could and should have extended the common law of native title in the case law after Mabo in a way that both protected non-Indigenous statutory and other rights and interests in the land and provided greater recognition for the continuing connection of Indigenous peoples to their Country through the concept of native title.

    Choices made by the High Court in Developing the Concept of Native Title

    The strength of title

    The assertion of sovereignty is the start of any analysis of the recognition of Indigenous rights to land in the concept of native title. The Mabo decision both introduced the possibility of recognition of another basis for entitlement to land and set the limits within which such recognition could occur. Mabo made it clear the act of State establishing the colony could not be questioned in the domestic courts.[65]

38. The terms of the assertion of sovereignty meant that what strength native title has comes from the common law, and can be no greater than what the common law is capable of recognising.[66]

39. Although it did not challenge the act of State that introduced the new sovereignty, Mabo created a disjuncture between the state of the common law as Mabo declared it to be and the state of the law as it was understood to be. In the years between first settlement and the Mabo declaration of the state of the law, the exercise of authority by the governor under the prerogative, or under imperial and later colonial legislation, and in the 20th century, the exercise of authority by the executive branch of government under State and Territory legislation, failed to account for the existence of native title. The legal practice (of granting unencumbered rights to land) did not conform to what was later found to be legal form (the common law's recognition of native title).[67] The question then is what scope for recognition of native title existed within the constraints of the assertion of sovereignty and the exercise of authority under this sovereignty?

40. The terms of sovereignty have shaped the understanding of the extent to which Australian law can change to accommodate Indigenous rights to land. In Mabo, Brennan J described the doctrine of tenure as a skeletal principle that is not open to challenge.[68] "Land in Australia which has been granted by the Crown is held on tenure of some kind and the titles acquired under the accepted land law cannot be disturbed."[69] Under this doctrine, land grants were made to settlers, and it was this (and not the introduction of the common law to Australia) which dispossessed Indigenous peoples of their land "parcel by parcel, to make way for expanding colonial settlement".[70]

41. In cases since Mabo, the Court has not revisited the question of what the skeleton of principle required. It has accepted the obiter dicta of Brennan J on the extinguishing effect of subsequent grants, and clarified it in relation to particular types of grant. Wik set out clearly the common law principles of extinguishment. "Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it".[71] Although the majority of the Court in Wik held that Queensland pastoral leases did not automatically extinguish native title, it confirmed the principle that Crown grants conferring exclusive possession to the grantee were inconsistent with native title and extinguished it.[72] It also confirmed that the process of determining whether or not a grant extinguished native title was the consistency of rights under the grant with the continued existence of native title rights. The test of extinguishment was an abstract legal inquiry of whether native title survived the impact of exercises of authority. There was no attempt to grapple with the existence in fact of a plurality of relationships on the land and there was no need to discuss what the principles of justice demanded of the law. Ward has now strengthened and superseded the approach to extinguishment in Wik.[73] It extended the impact of the exercise of authority under the new sovereignty on native title rights and interests.

42. The joint judgment in Ward expressed how the granting of a pastoral lease was an example of the exercise of the new authority. Any native title to control access to land on pastoral leases was extinguished by the exercise of that authority.

    The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or the assertion of rights to control access to land, the right to be asked permission to use or have access to the land was inevitably confined, if not excluded.[74]

43. Other lesser rights may, however, have survived. The result of Ward would appear to be, therefore, that native title can only span the whole range of potential rights associated with land on vacant Crown land.[75] Furthermore, Ward extended the principle of extinguishment on reserve lands. The High Court overturned the trial judge and the Full Court of the Federal Court on the rules for the extinguishment of native title on reserve land.[76] The courts below had held that it was the use that was made of reserve land that extinguished native title, and not the nature of its divestment. By overturning the courts below on this point, the High Court extended the principle established in Wik that it is the nature of the exercise of authority over the land, and not the use of land under that authority that determines the extinguishment of title. Depending on the extent of rights conferred on others in relation to reserve lands, a reserve might extinguish native title rights in full or in part, or not at all.[77]

44. The High Court in Ward discussed the 'inherent fragility' of native title in support of its approach to extinguishment. The description of native title as inherently fragile was not used in any of the judgments in Mabo, but has become increasingly prevalent since that case. In Mabo, Deane and Gaudron JJ discussed the 'vulnerability' of native title by which they meant that native title rights are 'susceptible to extinguishment by inconsistent grants of the Crown'.[78] The vulnerability flows from 'the nature of the rights as personal'.[79] According to Deane and Gaudron JJ this vulnerability was particularly acute before the existence of native title had been recognised and before legislative reforms, such as the Racial Discrimination Act, protected these rights. Deane and Gaudron JJ stressed that this vulnerability has been reduced, if it persists at all, as a result of the availability of a range of legal means to protect it. 'The fact that the rights under [native title] are true legal rights means that they can be vindicated, protected and enforced by proceedings in the ordinary courts.'[80]

45. The 'vulnerability' of native title to extinguishment has been reinforced in subsequent cases by the idea that native title is 'inherently fragile'. The High Court first made reference to native title as 'fragile' in Wik. Kirby J made the reference in a discussion of three theories of the relationship between Crown grants and native title. In rejecting a theory that all legislative acts extinguish native title, Kirby J stated: "The first theory was one which postulates the extreme fragility and vulnerability of native title".[81] In rejecting this theory, Kirby J is presumably also rejecting the fragility of native title upon which it is based. In Fejo, Kirby J first invoked the notion of the fragility of native title as the basis for its extinguishment. Not only was native title vulnerable to extinguishment by inconsistent grants, but its 'fragility' seemed to make its actual extinguishment in the face of particular forms of grant more likely.

46. Of its nature, [the right to exclusive possession] cannot co-exist with native title. The inconsistency lies not in the facts or in the way in which the land is actually used. It lies in a comparison between the inherently fragile native title right, susceptible to extinguishment or defeasance, and the legal rights which fee simple confers.[82]

47. Kirby J quotes the judgments of Brennan J and of Deane and Gaudron JJ in Mabo as authority for the concept of the 'inherently fragile native title right' though neither judgment makes reference to the concept. Kirby J confirmed the significance of the fragility of native title a few paragraphs later when he described the rights associated with a fee simple as not being inherently fragile in contrast to native title rights.

    [T]he rights which may be enjoyed compatibly with an interest in fee simple themselves derive from the same legal source. They are not rights, inherently fragile and liable to defeasance, arising outside that system and dependent for their effectiveness upon the extent to which a different legal system accords them its recognition.[83]

    In this passage, it is evident that the fragility of native title derives from its origin in a different legal system. Nothing outside native title's vulnerability to extinguishment clearly established in Mabo is provided to explain the ramped up rhetoric of 'fragility'.

48. Since Fejo, the other judges of the High Court have adopted the description of native title as 'fragile', referring back to Kirby J's statement in Fejo. In Yanner v Eaton Callinan J held:

    In both Mabo [No 2] and Wik the Justices of this Court discuss, at length, native title but attempt no definition of it. Perhaps this is because not only is it, as it has been described, fragile [See, eg, Fejo v Northern Territory (1998) 195 CLR 96 at 151.], but also because to non-indigenous people it may be a somewhat elusive concept. But neither its fragility nor its elusiveness absolves the Court from identifying native title rights in any case calling for their consideration.[84]

49. In Wilson v Anderson, Kirby J suggests that the inherent fragility of native title is well established, though he only makes reference to his own use of the concept in Fejo. From the beginning it has been clear that the enjoyment of native title to which successively the common law, the NTA and other legislation gave recognition, was "precarious"[85] or "inherently fragile [Fejo (1998) 195 CLR 96 at 151].[86]

50. In Ward, the Court held that native title rights were diminished in the face of an exercise of executive authority, regardless of a direct inconsistency of rights. No explanation was provided for why, on a pastoral lease, native title rights were necessarily diminished in this way. There seems nothing in principle (besides the inherent fragility of native title) to prevent the right to exclude others from the land to co-exist in holders of native title and pastoral leaseholders. Three of the four judgments in Ward (with the exception of Kirby J) discussed the fragility of native title as an established proposition.[87] The majority joint judgment incorrectly attribute the origin of the 'inherent fragility' of native title to Mabo. Reference was made in Mabo [No 2] to the inherent fragility of native title.... An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country [which is] inevitably confined, if not excluded [by the exercise of sovereign authority].[88]

51. Although it was established prior to Ward that native title was vulnerable to extinguishment by the exercise of sovereign authority, the rhetoric of fragility seems to have increased the extent of this vulnerability. Prior to Ward, an exclusive possession grant extinguished native title, but there could be co-existent rights on a non-exclusive possession grant. In Ward, it would seem that the rights that can co-exist are only rights that in no way overlap with the rights of the holder of the grant. So if a pastoral lease confers on the pastoral lessees the right to exclude others (besides native title holders) from the land, any equivalent native title right to do so is extinguished, or if a reserve is vested in a statutory body, only that body can control and confer rights on land. Strictly, this allows for no co-existence of rights at all. Whenever a right exists in both grant holder and native title claimants, the latter is extinguished, reinforcing the extreme vulnerability of native title. In relation to reserves, the trial judge and the Full Federal Court emphasised that the vesting of reserve land only gave to the authority 'rights necessary for the control and management of the reserve', and that this right was not sufficient to extinguish native title until exercised.[89] In these findings, what has become an inconsistency which extinguishes native title rights in whole or in part has been expanded. The expansion of extinguishment on reserve lands and pastoral leases fits within the logic of the pre-existing principle of extinguishment in Wik, but it was not a necessary requirement of the principle. Importantly, the High Court's extension of the principle of extinguishment is more easily achieved the more fragile is the concept of native title.

52. There is much about the concept of native title which belies its designation as fragile. Native title is based on a relationship to land that derives from its own source of authority. The relationship pre-existed British sovereignty. If the international law of colonization had been followed at the time of first settlement, legal declarations of extinguishment through compulsory acquisitions, inconsistent grants and resumptions would not have been possible. It would have been possible to take the land only by force (conquest) or through treaty (cession).[90] Native title is based on a communal, possessory relationship to the land. It is sui generis and inalienable. The relationships which underpin native title are not reducible to a paper title, and will persist even if common law native title is extinguished. If anything, these characteristics of the origin of native title ought to add to its strength, not its fragility. As Lisa Strelein has observed:

    The language in judgments such as Fejo has been unequivocal, reiterating the 'vulnerability of native title within the legal system'. This vulnerability is a construction of the common law, which does not reflect the strength of the rights under Aboriginal law. ... It is only the susceptibility to extinguishment . . . that should be seen as a source of vulnerability. The other characteristics [of native title] should be emphasised as traits of incredible strength that come from translating sovereign title into proprietary title.[91]

53. In cases since Mabo, if the Court had chosen to emphasise the aspects of native title which provide its strength, the logic of extending the principle of extinguishment would have been less compelling. For example, in Wik Peoples v Queensland, Brennan J stated:

    The strength of native title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it.[92]

54. If the strength of title is inherent and not just in its enforceability, there is a good the case for protecting native title against impairment by subsequent Crown grants. In Mabo, various ways of protecting native title in the common law were discussed. Deane and Gaudron JJ discuss the possibility of protecting native title through the establishment of a 'constructive trust', or by adapting other rules 'necessary to enable the protection of rights under the native title.'[93] Toohey J discusses the possibility of a fiduciary duty existing between governments and native title holders.[94]

55. The majority in Fejo stated the terms of extinguishment in relation to fee simple in the following terms:

    An estate in fee simple is, "for almost all practical purposes, the equivalent of full ownership of the land" and confers "the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination". It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title.[References omitted, emphasis added.][95]

56. Although the majority in Fejo framed the extent of rights under a fee simple as broadly as possible, the statement still contains various ways in which the rights under a fee simple are necessarily constrained. Again if native title was not constructed as inherently fragile, it might be considered to fit within these constraints either as a 'predecessor in title', or as a new form of constraint on the extent of fee simple rights.

57. If the Court had viewed differently the characteristics of native title, there was nothing to prevent it holding native title to be so strong as to be extinguished only when there was an inconsistency in the exercise of rights under a grant and rights under native title. Even in these circumstances, native title might on occasions have been held to be so strong as to only be suspended, and not extinguished. This is closer to the approach adopted by Lee J at first instance and North J in the Full Court of the Federal Court on appeal in Ward. Even without going this far, if the strength of native title is emphasised over it fragility, the Court might have found it harder in theory to extend extinguishment to vested reserves or to co-existent rights, such as to control access, on pastoral leases. To pay attention to the strength rather than the weakness of native title is not to break the skeleton of principle upon which the law is based. It does not detract from existing rights, but recognises the practical and legal reality that there are currently co-existent rights on land, and that the common law will protect them to the extent that such protection does not derogate from the exercise of rights under the grant. To take this approach does not require a different understanding of the nature of land grants - a fee simple is still good against all the world and still has attached to it 'every act of ownership which can enter into the imagination'.[96] However, it does require a different understanding of the strength of native title.

    The nature of native title and the terms of translation

58. The existence of native title rights depends on the successful translation of traditional laws and customs into rights and interests known to the common law. The translation is performed through analogy. Prior to Ward, there were two forms of this analogy evident in the case law. One required a translation of occupation of Country under traditional laws and customs into native title to that area of land. The other required a translation of particular traditional uses of or interests in land into particular rights attached to those uses and interests.

59. The first approach accepts as a starting point that Indigenous relationships to Country constitute a complex, interrelated system of laws and customs. Any particular use of, or interest in, land or waters occurs within this system without having to be made out as an individual native title right. Toohey J reflected this understanding of native title when he stated that 'an inquiry into the kind of society from which the rights and duties emanate is irrelevant to the existence of the title, because it is inconceivable that indigenous inhabitants in occupation of land did not have a system by which land was utilized in a way determined by that society'.[97] Justice Lee in Ward stated that 'native title at common law is a communal 'right to land' arising from the significant connection of Indigenous society with land under its customs and culture'.[98] In the Full Federal Court, North J also accepted prima facie that Indigenous relationships to land were 'part of one meaningful interrelated system'.[99]

60. The second approach to translation occurs at a less abstract level. It requires a direct translation of particular uses of land into corresponding native title rights. This approach was adopted by the majority of the Full Court of the Federal Court in Ward.[100]

    Under the tenure system of the common law, legal and equitable estates in land are institutions of the common law. Rights attaching to those estates as a matter of law, are described as incidents of the estates or of the title. Rights attaching to common law tenures of that kind are truly pendant or parasitic on the title. That however is not the case in respect of 'native title', and the quality of the rights and interests conveniently described as native title cannot be elevated to something akin to a common law tenure by describing them as 'incidents'.[101]

61. Although in Mabo, Brennan J, Deane and Gaudron JJ, and Toohey J all made general references in obiter dicta to the terms of translation, only in Ward has the High Court seemingly settled its approach. The whole Court accepted the Full Court's formulation of title as a series of rights related to land.[102] The rights are established through the demonstration of continuing connection under traditional laws and customs. The nature of the connection determines the nature of the native title rights. Some grants or uses of land under the Crown, such as grants of freehold title, extinguish the whole bundle of rights. Other grants or uses of land extinguish only some of the bundle of rights. As was discussed above, what rights survive on non-exclusive possession grants depends on the possibility of the co-existence of rights which in turn depends, at least in part, on the strength attributed to native title. In Ward, the Court held for the first time that the central rights to control access to land were likely to be extinguished on non-exclusive possession grants.

    [T]he creation or assertion of rights to control access to land [inevitably confined or excluded] the right to be asked permission to use or have access to the land. ... But because native title is more than the right to be asked permission to use or have access (important though that right undoubtedly is) there are other rights and interests which must be considered, including rights and interests in the use of land.[103]

62. The right to be asked permission is, according to the Court's formulation, the most extensive native title right to land. It is less likely to have survived sovereignty than lesser rights to access the land for traditional purposes. According to Ward, it is still possible for native title rights to amount to the equivalent of ownership, but only if 'the rights and interests possessed under traditional law and custom' can be demonstrated to be equivalent to ownership, and given the Court's extension of the principles of extinguishment, probably only on vacant crown land.[104]

63. The High Court's choice of the terms of translation of Indigenous relationships to country into native title rights has left a great deal of uncertainty about the proof and exercise of native title rights. First, it is not clear from Ward whether a law or custom demonstrated to have been performed only in a particular location in a claim area can be the foundation of a native title right to carry on the practice throughout the claim area, or only in those particular locations. If native title rights only exist in places where the traditional practice is demonstrated to have occurred, this has implications for proof of title. For example, there may be less scope for claimants to choose not to reveal the more sensitive aspects of their relationship to land. If claimants have a secret spiritual connection to a place within the claim area which is not otherwise accessed, only by revealing the connection will there be a right to access the area for that purpose. Ward also leaves it unclear what certain relationships to land amount to in terms of native title rights. Lee J at first instance in the Federal Court, the Full Court of the Federal Court and the High Court all accepted that maintaining a spiritual connection to land was sufficient for native title rights to attach to the connection. However, it is far from clear what form a native title right associated with a spiritual connection to land could take. Is it a right to protect the area, or a right to access the area, or only a right (if it be a right at all) to assert a connection to the area?

64. Second, the Court has also made it clear that laws and customs that evolve are still 'traditional' in nature and therefore can still be associated with native title rights. If traditional laws and customs evolve, what happens to the native title rights attached to them? Do they evolve automatically? Or must there be a re-examination of the nature and extent of the rights? For example, if the claimants demonstrate a traditional practice of hunting kangaroo in a claim area, but kangaroos die out and there is an influx of feral rabbits, is there a continuing native title right to hunt in the claim area? Or if native title holders introduced a new practice of hunting kangaroos, what are the criteria for determining whether the new practice is consistent with a native title right to hunt? Finally, does a native title right to hunt apply throughout the claim area, or only where evidence of hunting practices is provided? If the right only extends to areas where there is evidence of hunting, there is a further question of how to determine the spatial extent of particular native title rights within the external boundaries of a claim.

65. Native title has been described as a 'recognition concept' or 'recognition space'.[105] The recognition space is a way of bridging the gap between Indigenous relationships to land, and common law rights and interests in land. The law starts from the premise that the common law is capable of recognising Indigenous relationships to land, and works out ways to attach legal rights to the relationships through the concept of native title (the recognition space). Through native title, the common law can recognise Indigenous relationships to land even though the common law does not understand the nature of the relationships underpinning those rights. Considering native title in terms of the space it provides for recognition of traditional laws and customs illustrates the significance of the Court's choice of the form of translation from traditional laws and customs into native title rights and interests. If native title is understood to be an underlying title to land as formulated by Lee J at first instance in Ward, there is scope for Indigenous laws and customs to be legally recognised without the law requiring a detailed understanding of particular traditional laws or customs. On the other hand, if the concept of native title requires a direct translation of each right and interest into a common law equivalent, there is less scope for the expression of relationships not known or knowable to the common law, or necessarily kept secret from the law. For the law to confer rights, enough evidence of a traditional relationship must be revealed to the law, and upon revelation of a particular relationship, rights will only be conferred if the relationship reveals a use or practice which can be construed as a legal right.

66. The difficulties discussed above in the determination of native title arose because of the choices the Court has made in terms of the criteria for translation of traditional laws and customs into common law or statutory rights and interests, and because of the way it has construed the strength of native title. The final section of this paper analyses the High Court's use of authorities from other former colonies of the Crown in making these choices. The Court has summarily dismissed the jurisprudence of Aboriginal title in other former colonies although they were highly influential in giving rise to Mabo. This dismissal has meant that the Court has not considered alternative approaches to determining the nature of native title rights. These approaches might have accorded a greater strength to native title, and thus been in a better position to confer legal recognition to Indigenous relationships to land.

    The use of authorities from other former colonies of the Crown

67. Authorities from other jurisdictions lend support to alternative ways of constructing native title. In Mabo, the High Court made extensive use of the authorities of other former colonies of the Crown. In subsequent cases, however, the High Court has rejected the use of authorities from outside Australia in developing the concept of native title. Instead, the Court has relied on the principles established in Mabo as the most persuasive and binding authority even on questions not directly raised in that case.[106] Few reasons have been given for the rejection of authorities elsewhere. In Wik, Gummow J stated that in Canada, the common law developed on the foundation of a respect for Aboriginal interests in the land. The Crown took land subject to these interests, and if these interests were to be removed, it was to be done 'by solemn treaty with due compensation'.[107] For Gummow, the attitude of colonial authorities in Canada distinguished not only their political situation from that in Australia, but also the development of the common law. However, in Mabo, the Court held that the common law recognised native title regardless of acts of State that dispossessed Indigenous peoples. The common law was so resilient that it maintained the doctrine of native title despite the fact that people believed and acted as though there was no such doctrine for over 200 years. Given the resilience of the common law in the face of State practice, there seems no reason why the Australian common law should be profoundly different from the common law in other former colonies of the Crown where the attitude of colonial governments to the rights of Indigenous peoples was different.

68. In Fejo, the whole Court rejected the assistance that might be gained from decisions in other common law jurisdictions. The majority joint judgment simply 'doubt[ed] that much direct assistance' was to be had from these sources.[108] The only explanation for this 'doubt' was that, 'in some cases the answer that has been given in other jurisdictions may have been affected by the existence of treaty or other like obligations'.[109] This highly circumscribed rejection of foreign jurisprudence is not accompanied by an explanation for the Court's doubt, why it might not get some assistance (direct or indirect) from common law jurisprudence elsewhere, or how it is that the development of the law 'may have been affected' in such a way as to render the decisions unhelpful to the development of the Australian law. In a separate judgment, Justice Kirby made a lengthy disavowal of foreign jurisprudence:

    [C]are must be exercised in the use of judicial authorities of other former colonies and territories of the Crown because of the peculiarities which exist in each of them arising out of historical and constitutional developments, the organisation of the indigenous peoples concerned and applicable geographical or social considerations.[110]

69. Kirby J elaborated briefly on the differences in conditions in other jurisdictions, mentioning the recognition of a degree of sovereignty attributed to Indigenous peoples in the US, constitutional amendment in Canada, and different bases for the assertion of sovereignty in various African colonies.[111] Kirby J concluded:

    The ways in which each of the former colonies and territories of the Crown addressed the reconciliation between native title and the legal doctrine of tenure sustaining estates in land varied so markedly from one former territory to the other and were affected so profoundly by local considerations (legal and otherwise) that it is virtually impossible to derive applicable common themes of legal principle. Still less can a common principle be detected which affords guidance for the law of this country. Australia is a late entrant to the field following the change of understanding in the common law as it was previously conceived, evidenced in this Court's decision in Mabo [No 2] and cases since.[112]

70. Kirby J uses strong rhetoric but little reasoning to reinforce the potential differences between the history of colonisation in Australia and the history of colonisation elsewhere. He makes no attempt to identify any similarities in the history of dispossession in former colonies which might have supported the use of their jurisprudence. In the last sentence of the passage quoted above, Kirby J seems to suggest that the fact that the common law in Australia is grappling with the issues after the common law positions of other countries have been established is a further reason for them not to offer any guidance to the development of the Australian law. In other words, the lack of precedent in Australia and the wealth of experience elsewhere somehow reinforces the summary dismissal of the authorities of former colonies of the Crown.

71. There are many striking similarities between the methods and motivations of colonisation in Australia and of many former British colonies.[113] Also, the perceived differences between the nature of the existence of the Indigenous peoples in Australia and elsewhere was based largely on ignorance of the traditional ways of Indigenous Australians. This ignorance was the basis for the failure to recognise their rights to land. It was the erosion of this ignorance which led to the realisation that the terms of settlement were unjust and led to the 'underpinnings of regret'[114] and the eventual recognition of Aboriginal title in Mabo. "The differences, shorn of their discriminatory gloss, lose much of their significance for Indigenous title. The general common law doctrine provided an obvious model of what might have been had discriminatory denigration been absent."[115]

72. In Ward at first instance, Justice Lee was heavily influenced by the Canadian approach to determining the extent of extinguishment of title on the claim area by inconsistent Crown grants. He was heavily influenced by the 'adverse dominion test' of Lambert J in the British Columbia Court of Appeal in Delgamuuk v British Columbia.[116] The Full Court of the Federal Court overturned Lee J, citing Gummow J in Wik and the majority in Fejo as authority for rejecting the Canadian authorities.[117] In affirming the decision of the Full Court on the adverse dominion test, the High Court does not even mention Canadian authority although it was presented to the Court as relevant in argument.[118] "[T]he test adopted by Lee J from the judgment of Lambert JA ... was the wrong one. ... None of [its] elements forms part of the Australian law.'[119] The Court simply propounds its theory of title, relying on its own jurisprudence developed since Mabo free of the influence of the rest of the common law world. The rejection of authorities in places where settler societies have attempted to come to terms with the consequences of their colonisation on the land rights of Indigenous peoples is unprincipled. The High Court's unwillingness to move beyond its declaration of the existence of native title in Mabo stands in stark contrast with much of this jurisprudence.

73. The rejection of authorities from other former colonies after Mabo removed important indicators of the potential strength of Aboriginal title outside of the High Court's formulation of native title. One such alternative basis for Aboriginal title was in the prior possession or continuing occupation of Indigenous peoples on the land. In Mabo, Deane and Gaudron JJ, and Toohey J discussed this alternative drawing on Canadian jurisprudence. A title founded on the basis of possession or occupation takes the focus of legal inquiry off the traditional laws of customs of Indigenous peoples. Deane and Gaudron JJ accepted that occupation is likely to be adequate evidence of the continued maintenance of traditional law and custom.[120] Toohey J went further and entertained the possibility that occupation in itself could be the basis of title. He stated that 'it is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title'.[121] He concluded that possession was capable of giving rise to a 'presumptive title'.[122]

74. Case law since Mabo has not pursued this basis for native title. Possession has been part of the rationale for the recognition of native title in Canada, although it is not a separate basis for title in that, or other jurisdictions.[123] There are clear advantages to a title based in occupation that do not exist in the current formulation of native title. First, the common law already has a developed jurisprudence on the circumstances under which 'possession' might be the basis of title. Gray and Gray, whom the Courts drew on to broaden its conception of property in Yanner v Eaton,[124] maintain that:

    The common law . . . is preoccupied with what happens on the ground rather than what emerges from the heaven of concepts. On this view, property is more about fact than about right, it derives ultimately ... from the elemental primacy of possession.'[125]

75. This familiarity with title based in possession means that that the common law has principles to draw on to resolve competing rights on an area of land, and these principles provide greater protection for a title based on occupation than does the current basis of native title. Whereas native title based on traditional laws and customs is constructed as inherently weaker than statutory grants, the test for extinguishment of a possessory title focuses on the relative strength of the competing rights to occupation. The holder of a grant is 'put to proof of the strength of his or her title and could not rely on the weakness of the defendant's title.'[126] Also, a possessory title that has been extinguished by an inconsistent grant can revive if the grant comes to an end and the possession has continued, a possibility rejected in Fejo for native title based on traditional laws and customs.[127]

76. Second, as has been discussed, a title based in possession does not require the difficult translation of traditional laws and customs into particular native title rights and interests. The translation has caused the Courts difficulties on occasions. In the claim of the Yorta Yorta peoples, Justice Olney favoured historical evidence which suggested a break in traditional connection over oral evidence testifying to a continuing traditional connection to the claim area.[128] Despite a body of academic criticism criticising this aspect of Olney J's judgment,[129] a majority of the Full Federal Court and a majority of the High Court has upheld the decision.[130]

77. In Wik, Brennan CJ entertained the possibility of an analogy between continuing Indigenous occupation of land and adverse possession, but summarily dismissed it:

    The holders of native title did not acquire a possessory title. A possessory title arises from possession that is adverse to the title of the true owner. Until the Crown lessees acquired their respective titles, the holders of native title held the land by virtue of that title. After the Crown lessees acquired their titles, the continued occupation by the erstwhile holders of native title is explicable by lessor's consent rather than by possession adverse to the lessor's possession.[131]

78. This passage suggests there could only be one common law basis for the recognition of Indigenous rights to land. There is, however, nothing in principle to prevent the Court recognising more than one basis for Indigenous rights to land. Indeed, Canada offers a well developed jurisprudence on alternative bases for claims to 'Aboriginal title' and 'Aboriginal rights'.[132] The passage provides two bases for why Indigenous possession of land the subject of Crown grants was not 'adverse' to the title of the true owner. First, native title claimants were in possession of the land and 'held the land by virtue of native title'. It seems incongruous that a person in possession who had no other possible claim of right could claim a title of adverse possession when a native title claimant with a stronger claim to occupation could not. To make this first point, Brennan CJ relies on the fiction that rights to occupation were already protected by native title although this basis of claim was not even known to exist until Mabo and history would tend to suggest that Indigenous occupation of land was not as a matter of right, and therefore in the relevant sense 'adverse' at the time. Second, the continuing occupation of Indigenous people is attributed to the 'lessor's consent' rather than any adverse possession. This is speculation at best, and given the violent dispossession of Indigenous peoples from their lands, attributing 'consent' to the minds of the lessor's seems generous and is not substantiated by any historical example. In any case, where the permission or consent under which possession has been taken is revoked, the possession thereafter becomes adverse and time begins to run.'[133] This would likely apply to the conditions of Indigenous communities who were tolerated to different degrees by different grant holders through the time of their occupation.

79. A title based in occupation offers considerable advantages as an alternative basis for native title. What is more, in many instances, it fits the circumstances of native title claimants well. Many of the characteristics of the concept of native title are in the nature of possession. Its origin as a proprietary right is in the fact of possession. "If it be necessary to categorize an interest in land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category."[134] The title persists to the extent that the relationship conforms to a particular concrete relationship to the land (based on traditional laws and customs). Finally, throughout Mabo, the Court expressed the social and political injustice that colonisation wrought upon Indigenous peoples in the language of 'dispossession'.[135] It is only to the extent that this dispossession did not occur that native title continues to exist. Conversely, it seems logical that the fact of possession should support a claim for native title rights.[136]

80. Lisa Strelein argued prior to Ward that the same strength of title that can be derived from occupation was inherent in the common law concept of native title. 'The concept of native title in Australian common law can be flexible enough in recognising a continuum of interests to accommodate non-possessory rights.'[137] According to Strelein, an advantage of relying on traditional laws and customs rather than occupation as the basis of title is that it emphasises that the title gets its strength from an alternative system of governance, and it allows for claims to title to be made where continuous occupation has been disrupted though a strong spiritual connection has been maintained with the land. For this reason, Strelein argued that 'physical presence should not be understood as an absolute requirement.'[138] However, she also recognised that if the movement toward a bundle of rights approach continued, as it has in Ward, it may be necessary to pursue other ways of protecting native title along the lines of the Canadian approach. Given the potential of the concept of possession to strengthen the concept of native title, and the established jurisprudence in Canada following this approach, the High Court's failure to even consider the body of jurisprudence supporting this and other bases for Aboriginal title is disappointing.

    Conclusion

81. The principle of the common law recognition of native title, based on the traditional laws and customs of Indigenous peoples can not be sustained by a jurisprudence of regret. 'Beyond regret' there needed to be a cautious and well considered consolidation of the place of native title in the Australian legal and constitutional landscape. Justice Gummow's description of Mabo having instituted a 'perceptible shift in the constitutional foundation away from that understood at federation' indicated the magnitude of the transformation required.[139] In a companion piece to his explanation of Mabo as an example of a jurisprudence of regret, Jeremy Webber cautions against an understanding of native title as 'simply another kind of interest affecting land, slipped into the structure of Australian property law'.[140] He argues:

    It would be bitterly ironic if, in the very act of recognising indigenous title, the courts simultaneously extinguished its vitality, especially if this occurred without any clear perception that that was happening or any attempt at justification.[141]

82. I have argued in this article, that in the High Court's approach to the extinguishment of native title, what Webber describes as bitterly ironic has come to pass. The invocation of the overturning of the doctrine of terra nullius to allow for the declaration of the common law recognition of native title has been followed by an increased rhetoric of its vulnerability to extinguishment or partial extinguishment due to its separate origin. The construction of Crown and native titles as incommensurable is based on the same radical fragility of rights outside the common law that underpins the doctrine of terra nullius.

83. There is little doubt that even with no further development of the concept of native title after Mabo, Mabo led to an important change in the understanding of Indigenous right to land, and has raised awareness of the need to consider Indigenous interests in State, Commonwealth and private dealings with land. The system of Indigenous land use agreements, the establishment of Native Title corporations to manage the native title interests of communities, and the empowerment associated with asserting rights to land, regardless of whether the claim is ultimately successful, has developed as a result of Mabo. Whether these developments amount to a shift in Australia's constitutional foundation is perhaps less clear. On the other hand, the Mabo declaration has led to extraordinary energy and resources being poured into the land claims process with very limited success.[142] The process has opened Indigenous communities to scrutiny of their connections to land and judgments as to whether they are authentic and traditional.[143]

84. In this article, I have argued that the Court's responsibility did not end with the Mabo declaration. In fact, the declaration opened up a responsibility to develop the common law in line with the principles of justice that drove the Court to its original declaration of the existence of native title. If the principle of justice had been present in subsequent cases, the Court might have been more cautious in its elaboration of the doctrine of extinguishment. In the last paragraph of his judgment in Ward, Justice McHugh expresses the futility of resolving questions of the dispossession of Indigenous peoples from their lands through 'a system that depends on evaluating the competing legal rights of landholders and native-title holders'. This is because the 'deck is stacked against the native-title holders whose fragile rights must give way to the superior rights of the landholders whenever the two classes of rights conflict'.[144] McHugh J draws a clear distinction between a political response to the conflict of rights, and the role of the Courts which is simply 'to declare and enforce the legal rights of the parties, irrespective of their merits'.[145] Despite his articulation of a broader 'law making' role for judges in other judicial contexts, McHugh J is content that there is no such role in the transformation of property law in Australia, regardless of the justice of doing so.

85. The standard legal method of maintaining a connection to the past is through precedent. Precedent emphasises consistency. Keeping faith with the past is reason enough to follow past practice. It is this that McHugh J emphasises in the last paragraph of his judgment. In contrast, the jurisprudence of regret is driven by a determination to break with a past practice or principle that ought not to be perpetuated into the future. As such, it develops outside the framework of existing principle. The weight of precedent, built around what Brennan J describes as the 'skeleton of principle', stands in contrast to any new principle established in regret. Webber concludes his paper on the 'Jurisprudence of Regret' by suggesting that judges are well suited to making judgments that respond to substantive injustices. Judges are 'concerned with the normative structure of a community through time'.[146]

86. The nature of judicial reasoning is that judges must reconcile the past and the present 'in a manner that takes seriously the law's claim to be a framework of justice'.[147] The development of native title jurisprudence reveals reasons why judges are not well suited to legal responses in regret. The Courts cannot legislate a fully articulated response to a reconciliation with the past. The transformation of the original declaration of a change in principle into a sustainable doctrine for the future can only happen as cases are brought to the Court to clarify the implications of the original doctrine. The Court therefore opens itself up to a difficult period of law making as the doctrine unfolds, unless the legislature takes control of the process by modifying the doctrine in legislation. Before an established doctrine takes shape the weight of existing doctrinal imperatives encourages judicial restrain, regardless of the merits of resisting such constraint.

87. By the time of its decision in Ward, the High Court seemed exhausted and frustrated by the concept of native title. This is evident in the narrow focus of the majority joint judgment on the Native Title Act to resolve the claim. It is evident in Kirby J's statement that, [native title] is an area of law where there is a very high premium on certainty" and that for this reason he was willing to "surrender personal preferences on particular issues in favour of a clear statement of the applicable law".[148] And it is evident in McHugh J's belief expressed in the last paragraph of his judgment that the law provides no adequate remedy for redressing the dispossession of Aboriginal peoples from their lands.[149]

88. Cases since Mabo have not reflected on the role of the judiciary in transforming the law to conform with the demands of justice, and the Court has devoted little time to discussing the nature and foundation of native title, the limits of its recognition, or why the Australian common law could not draw from the development of the common law in other former British colonies. Although the Mabo declaration of the existence of native title had a considerable impact on Indigenous and non-Indigenous relationships, the potential benefits from the native title process have been circumscribed through the development of the case law. The focus of Indigenous communities intent on protecting their relationship to Country has shifted to entering land use agreements with relevant State, Territory and Federal governments and others with an interest in the land. Without Mabo, there would have been no impetus for these agreements. But pity those communities who, in good faith, have pursued native title claims in the hope of confirming their inherent right to occupy and speak for their Country, only to find that, despite their status as the traditional owners of the land being confirmed in cases such as Ward, the common law does not have the capacity to confer rights to protect their relationship to Country.