The Role of Policy in the Development of Native Title
| Author | Bradley Selway |
| Published date | 01 September 2000 |
| DOI | 10.22145/flr.28.3.3 |
| Date | 01 September 2000 |
| Subject Matter | Article |
THE
ROLE
OF POLICY
IN
THE
DEVELOPMENT
OF
NATIVE
TITLE
Bradley
Selway
QC*
INTRODUCTION
In
a
recent
article
Andrew
Lokan
has
suggested
that
the
courts
are
faced
with
political
choices
as
they
deal
with
native
title.
1
The
purpose
of
this
paper
is
to
consider
the
history
of
the
recognition
of
Aboriginal
customary
rights
to
land
in
Australia,
assess
the
extent
to
which
policy
and
political
issues
2
have
thus
far
been
relevant
in
those
developments
and
then
to
consider
the
extent
to
which
such policy
and
political
issues
*
Solicitor
General
for
South
Australia.
I
acknowledge
the
assistance
of
Laura
Grenfell
and
Jane
Cox,
both
of
the
SA
Crown
Solicitor's
Office
and
of
Katva
Lakes,
law
student
from
Flinders
University,
in
researching and
commenting
on
this
paper.
Toni
Pauling
QC,
Solicitor-General for
the
Northern
Territory
and
Robert
Meadows
QC,
Solicitor-General
for
Western Australia were good
enough
to
give
me
their
comments.
Some
of
the
material
herein relating
to
international comparisons
is
derived from
the submissions
I
put
on
behalf
of
South
Australia in
l/Vik
v
Queensland
(1996)
187
CLR
I
at
55-58
which
were
refined
in
Fejo
v
Northern
Territoriy
(1998)
195
CLR
96
at
110
and
Yanner
v
Eaton
(1999)
166
ALR
258.
Esther
David,
Danielle
Seal
and
Rod
Smith,
all
then
of
the
SA
Crown
Solicitor's
Office,
assisted
in
preparing
the original
submissions.
The
mistakes
are
mine.
1
A
Lokan,
"From
Recognition to
Reconciliation:
The Functions
of
Aboriginal Rights Law"
(1999)
23
MULR
65
at
67-68:
"As
the
courts
move
beyond
Mabo
and
110k,
however,
to
the
processing
of
the
hundreds
of
claims
currently
in
the
Native
Title
Act
system and
possibly
to claims
of
a
non-proprietary
nature,
they
will
face
increasingly
difficult
questions
as
they
attempt
to give
effect
to
the
broad
principles
set
out
in
those
cases.
Inevitably,
given
the
intractability
of
the
competing
parties' positions
and
the
uncertainty
surrounding
their
legal
rights,
the
courts
will
be
forced
to
give
definition
to
Aboriginal
rights
in
a
way
that
fashions
compromises
of
a
markedly
political
nature.
Especially since
Ulik,
the
future
of
Aboriginal
rights litigation
seems
to
require
the
courts
to
make
such
judgments,
with
little
(so
far)
to
guide them
in
Australian
law
or
history.
In
short,
the
courts
can be
expected
to
shift
their
emphasis
further
from
recognition
towards
reconciliation."
2
For
the
purposes
of
this
paper
I
have
used
the
word
"political"
to
describe
policy
decisions
involving the
resolution
of
competing interests,
particularly
from
a
partisan
perspective.
The
word
need
not
bear
this
meaning.
On
some
occasions
it
is
used
interchangeably
with
"policy".
For
example,
it
appears
to
have
been
so
used
by
Kirby
J
in
Newcrest
Mining
(Western
Australia)
Ltd
v
Conmonwealth
(1997)
190
CLR
513
at
646.
It
can
also
be
used
to
mean
"of
or
about
the
political system". It
was
used
in
this
way
by
Dixon
J
in
Melbourne
Corp
v
Connonwealth
(1947)
74
CLR
31
at
82.
In
this
paper
the
word
bears
the
meaning
I
have given
it.
It
seems
to
me
that
this
is
also
the meaning
that
it
bears
in
the
Lokan
article
above
n
1.
Federal Law
Review
may
be
relevant in
the future.
Possible
limitations
upon
the
policies
that
might
be
considered
by
the courts
are
discussed.
The
discussion
also
affords
an
opportunity
to
look
back
over
the
development
of
the
law
of
native
title
and
to
review how
and
why
we
have
come
to
where
we
now
are.
THE
COMMON
LAW PRE-MABO
The
common
law
of
England
includes
rules
to
determine
what
laws
applied
within
newly established
colonies.
At least
as
those
rules
were
understood
in
Australia
during
much
of
the
19th
and
most
of
the
20th
centuries,
the first
step was
to
determine
the
appropriate
classification
of
the
colony.
For
example,
if
a
newly
established
colony was
classified
as
one
acquired
by
"cession"
or
"conquest"
then, subject
to
such
variation
as
was necessary
to
make
those
laws
consistent
with
English
procedures,3
the
laws
within
the
relevant
territory
in
place
immediately
before
the
establishment
of
the
colony
continued
to
apply
4
until
altered
by,
or
confirmed
by,
the
Crown.
5
In
such
a
colony,
pre-existing
property
rights
continued
to
apply
and continued
to
be
enforced by
the
common law courts,
subject
to
the
radical
title"
of
the
Crown,
which
entitled the
Crown,
if
it
wished,
to
extinguish
the
pre-existing
rights
by
making
a
new
and
inconsistent
grant.
6
Under
the
common
law
theory
as
it was
then
understood,
the
law
to
be
applied
within
colonies
classified
as
being
acquired
by
cession or
conquest
was different
from
that
to
be
applied
within
colonies
acquired
by "settlement".
In
relation
to a
"settled"
colony,
the
common
law
applied
from
the date
of
settlement,
7
to
the
extent
that
it
was
appropriate
to
the
condition
of
the
colony.
8
3
This
was
subject
to
the
qualification
that,
where
the
English
settlers
formed
their
own
separate
community,
that
community was
governed
by
English
law:
see
Advocate
General
of
Bengal
v
Ranee
Surnomoye
Dossee
(1863)
15
ER
811
at
824.
This
qualification
seems
to
have
been
a
19th
century
policy
response
to
the
apparent
need
to
ensure
that
the
English
"factories' in
India and
later
in
China and
other
Asian
countries
were governed
by English
law:
see
the
reference to
the
"tender
concern"
of
the
common
law
in
the
judgment
of
Brennan
J
in
Mabo
v
Queensland
(No
2)
(1992)
175
CLR
1
at
35.
The
effect
of
the
qualification
was
the
creation
of
"pluralism"
within
the
legal
system:
see
1-
A
Amankwah,
"Post-Mabo:
The
Prospect
of
the
Recognition
of
a
Regime
of
Customary
(Indigenous)
Law
in
Australia"
(1994)
18
UQLJ
15
at
17.
This
pluralism
seems
to
apply
in
most
of
the
British
colonies
established in
Africa
and
Asia:
see, eg,
Asean
Law
Association,
Asean
Legal
Systems
(1995)
at
81-90,
214-231,
245-249.
However,
in
more
recent
times
some
courts
in
former
colonies
in
Asia
seem
to
have
adopted
some
of
the analysis
from
Canada,
Australia
and
New
Zealand:
as
to
Malaysia,
see
Adong
Bin
Kuwau
v
Johor
[1997]
1
MLJ
418
at
426-430;
(appeal)
[1998]
2
MLJ
158.
4
W
Forsyth,
Cases
and
Opinions
on
Constitutional
Law
(1869)
at
12-18.
5
Milirrpum
v
Nabalco
Pty
Ltd
(1971)
'17
FLR
141
at
201-204;
Mabo
v
Queensland
(No
2)
(1992)
175
CLR
1
at
122-1.28.
6
For
example,
Amodu
Tijani
v
Secretary,
Southern
Nigeria
[1921]
2
AC
399.
That
case
concerned
land
in
Lagos
which
had
been acquired
by
cession:
see
at
404
and
409.
7
Cooper
v
Stuart
(1889)
14
App
Cas
286
at
291-292;
W
Forsyth,
above
n
4
at
17-18;
A
C
Castles, "Reception
and Status
of
English
Law
in
Australia"
(1963)
2
Adel
LR
1;
A
C
Castles,
An
Australian
Legal
History
(1982)
at
1-19.
8
Although
beyond
the
scope
of
this
paper,
it
should
be
noted
that
there
is
a
current
debate
in
the
H
igh
Court
about
whether
the
qualification
has
any
application
to
Australia
and,
it
Volume
28
The
Role
of
Policy
in
the
Development
of
Native Title
The
importance
of
the
relevant
classification
in
determining
whether
the
laws
of
the
pre-existing
owners
would
be
recognised
by
the common
law
is
obvious.
If
the colony
was
one
acquired
by
conquest
or
cession,
then
the
pre-existing
laws
continued
to
apply
and
be
enforceable, subject
to
the
Crown's
paramount
right
of
pre-emption.
If
New
South
Wales
had
been
characterised
as
a
colony
acquired
by
conquest,
then
the
customary
laws
of
the
relevant
Aboriginal
groups
would
have
been
recognised
and
applied
by
the courts
of
the colony,
at
least
in
relation
to
territories
outside
the
area
of
English
settlement.
This
would
not
have
been
limited
to
rights
to
real
property,
but
would
have extended
to
other rights
and obligations imposed
by
Aboriginal law.
On
the
other
hand,
if
the
colony
was characterised
as
a
settled
colony
then
English law
applied
throughout
the
colony
and
Aboriginal law was ignored
(indeed,
it
was
assumed not
to
exist).
The classification
of
the
colony
was
determined
by
the
courts
having regard
to
the
manner
of
the
acquisition
of
the
colony
by
the
Crown. Under international
law,
if
the
colony was
populated
by
a
people
with
a
legal
system
then
it
could
not
be
settled, but
could
only
be
acquired
by
conquest
or
cession.
On the
other
hand,
if
the
colony
was
uninhabited,
or
effectively
uninhabited
(that
is, if
it
was
terra
nullhius),
10
it
could
be
"settled". The
common
law
recognised
a
similar distinction.
A
colony
could
not
be
"settled"
unless
it
was
uninhabited.
However,
this
did
not
mean
that
the
courts
could
determine,
as
a
fact,
whether
the
colony
was
inhabited
by
people
with
a
legal
system.
Rather, in
determining
whether
a
colony
was
settled
on
the
one
hand,
or
ceded
or
conquered
on
the
other,
the
courts relied
upon
how
the
Crown
had
treated
the
colony.
As
Castles
has
put
it:
if
the Crown
decided
to
treat
a
territory
which
was
sparsely
populated,
or contained
primitive peoples,
as
being
unoccupied,
it
would
be
classified
[by
the
courts]
as
settled.
11
Recent research
suggests
that
there
was considerable
uncertainty
in
New
South
Wales
as
to
whether
the
colony
was
"settled"
or
conquered"
and
that
this
uncertainty
persisted until at
least
the
decision
in
R
v
Murrell
in
1836.12
However,
by
1847
when
the
so,
how:
see
Lipohar
zo
R
(1999)
168
ALR
8
at
[43-59]
and
contrast
[230-259].
See
also
A
CCC
v
Berbatis
(2000)
169
ALR
324
at
[9-11]
and
John
Pfiffer
Pty
Ltd
v
Rogerson
[2000]
HCA
36
at
[15].
The
relevant
issue
in
Lipohar
concerned
the
meaning
and
effect
of
there
being
a
single
common
law
in
Australia,
notwithstanding
that
the
Australian
colonies were colonised
at
different
times
and
in
different
circumstances.
It
may
be
that
Gaudron,
Gummow
and
Hayne
JJ,
particularly
at
[54],
in
referring
to
a
single common
law
accept
that
that
common
law
may
not
be
wholly
applicable
in
every
Australian
jurisdiction
because
it
was
not
appropriate
to
that
jurisdiction
at
settlement,
that
is,
that
there
is a
difference,
albeit
slight,
between
the
single
Australian
common
law, and
the
common
law
actually
applicable
in
a
particular Australian
jurisdiction. Alternatively,
at
[55]
they
seem
to
suggest
that
the
common
law
which
was
not
applicable
at
settlement
might
be
"picked
up"
and
applied
after
settlement
when
the
conditions
of
the
colony
had
become
appropriate.
This
would
provide
a
mechanism
by
which
a
single
common
law could
apply
within
Australia.
This
seems
to
be the
approach
to
the reception
of
the
common
law
in
Canada:
see
R
v
Nickal
(1996)
133
DLR
(4th)
658
at
681-683,
but
this
has
not
been
the
approach
in Australia.
9
Mabo
v
Queensland
(No
2)
(1992)
175
CLR
1
at
32.
10
See
D
Ritter,
"The 'Rejection
of
Terra
Nullius'
in
Mabo:
A
Critical
Analysis
(1996)
18
Syd
LR
5
at
7-9.
1
A
C
Castles, An
Australian
Legal
History
(1982)
at
14-15.
12
(1836)
1
Legge
72.
The
report
of
the decision
suggests
that
by
the
time
of
that
case
it
had
been
accepted
that
Aboriginal
people
were
subject
to
the
common
law:
see eg,
D
Ritter,
2000
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