Native Title: The Right to Negotiate - Common Law
Right or Right Conferred by Statute*


Sean Flood**

Mabo (No. 21) (herein Mabo) is the most important case decided by the High Court since the Court began with the appointment of three judges on the 5th day of October, 1903. It changed the way white Australians had seen their country for 204 years. The decision acknowledged the enormous injustice suffered by Australia’s Indigenous people since 1788 by the misapplication of the so called terra nullius principle.

Mabo did not, however, correct the injustice suffered by the Indigenous people of Australia. It was a pragmatic decision and the majority held that subject to the Racial Discrimination Act 1975 (the RDA) it was not wrongful for the Crown to dispossess Aborigines and Torres Strait Islanders. In the judgements of the majority, Australia was off the hook and does not have to pay compensation for extinguishment of native title before 31st October 1975 when the RDA commenced.

In a powerful critique of Mabo, Professor Kent McNeil of Osgoode Hall Law School, accuses the Court of creating common law rules of extinguishment, "which are racially discriminatory and which do destroy the equality of the Indigenous peoples before Australian law."2 He concludes that the Court ignored the overwhelming weight of authority in favour of native title holders and finds internal inconsistencies in the judgements. For example, he notes that Justice Brennan stated that upon acquisition of Australia by the Crown, the indigenous people became British subjects and were "equally entitled", along with other subjects, to the protection of the common law.3

The High Court has an opportunity to reconsider the morality and justice of this part of Mabo in the Wik case which is listed for hearing on the 11th June. That aside, the High Court held that the common law recognises pre-existing rights of Indigenous Australians to land which have survived and continue in existence today except where extinguishment has occurred.

Mabo is important because as a nation we are no longer living a lie. We now recognise the occupation of mainland Australia and the islands by indigenous people, their right to land and the survival of common law native title over crown land except where native title has been extinguished by valid past acts or the loss of connection.

In the words of Justice Brennan, "[t]he term native title conveniently describes the interest and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by, the indigenous inhabitants."4 The Native Title Act 1993 (Cth) [NTA] defines native title in terms of the rights and interests recognised by the common law. The NTA which was totally opposed by the Coalition when in Opposition (clause by clause) during its passage through both Houses of Parliament, is now the subject of revision by a new Coalition Government. This essay examines one aspect of the Act and its proposed amendment.

The Right to Negotiate

The Government discussion paper "Towards a More Workable Native Title Act" (herein 'the discussion paper') proposes many changes to the NTA I address one aspect only in this essay because it involves a legal right held by Indigenous Australians which the Government is proposing to radically reduce (or, some would argue, remove). As to the rest of the discussion paper, I do not agree that the NTA as it is at present is unworkable. Legislation such as this, to correct errors over two hundred years old, cannot achieve outcomes for the communities involved (communities with oral cultures), State governments and business interests in a short time frame. It is obscene for the perpetrators and beneficiaries of the pre-Mabo injustices to be imposing impossible time limits on the victims to now assert and establish their long ignored presence and rights to land and waters, wrongly regarded for 200 years as Crown property.

The right I am concerned with is the right to negotiate. The discussion paper refers to "the right to negotiate [as] a special right conferred on both registered native title holders and registered native title claimants which is not available to other?" (clause 27). The discussion paper regards the right to negotiate as a right which "derives from the NTA and is in addition to the common law rights" (clause 34). The Government's proposal is to remove the right to negotiate for exploration or prospecting activities. Subdivision B of the NTA provides a statutory framework for good faith negotiations between native title parties, government parties and grantee parties when mining (which by definition includes exploration and prospecting) is contemplated and native title land is involved.

The statutory framework (sections 26-44) contains regulatory provisions which apply to common law rights identified by Mabo. The right to negotiate is not a right conferred by the NTA; it is not an addition to the common law rights recognised in Mabo. When it exists, it is a common law right exercised in accordance with the traditional laws acknowledged by and the traditional customs observed by the indigenous native title holders. In my experience it is always a requirement under traditional laws and customs for any outsider to negotiate entry and activity on Aboriginal country with the traditional owners. As Justice Lee notes in the State of Western Australia v Ben Ward & Others, "a right to negotiate is an incident of the rights of native title".5 The right to negotiate is limited by the NTA. It is not a veto. If the parties cannot reach agreement, any party can apply to the arbitral body for a decision. Four months is allowed for negotiation over prospecting. Decisions by the arbitral body are subject to Ministerial override in the national, state or territory interest.

It takes time to negotiate with indigenous communities but the delays to development are worth it. Measured against the enormous harm to a people's culture that can occur, the national interest is better served by taking the time and entering into negotiations based on respect for the traditional owners. Aboriginal people are not anti-development. They do, however, have real concerns and rights that must be respected, and a culture that can suffer great harm if sites are violated and Western influences overwhelm their interests. We often need to overcome our attitudes of racial superiority and show real humility and respect for ancient living cultures.

The facts in each case that give rise to a common law right to negotiate can only be decided on a case by case basis. The Government cannot achieve extinguishment of the common law right to negotiate by legislation while "respecting the principles of the RDA".6 It is likely that the removal of the common law right of traditional owners to negotiate entry and activity on their land would be inconsistent with the Commonwealth law prohibiting racial discrimination. Some aspects of native title are fundamental to the integrity of the title. Negotiation based on respect for traditional owners' titles is one of those fundamentals. Its destruction would destroy the right of Indigenous people to own land according to their laws and customs.

It should also be noted that the removal of the right to negotiate will occur at a time that is likely to be the first contact between traditional owners and prospectors. That is bad for business. Mr Leon Davis who runs the biggest mining company in the world, CRA-RTZ, has stated that the old arguments by industry that "its traditional access to Australia's broad acres should in no way be restricted" no longer wash.7 On another occasion he said, "[o]ur starting point is that Aboriginal people who live near our exploration or mining areas are stakeholders in our venture. So too are Aborigines who no longer live there but retain a traditional connection to the band."8 There has been a paradigm shift for industry while the Coalition has been in Opposition. The Government needs to catch up with modern ways of doing business with indigenous communities.

It will take years of patient work to resolve all the issues that come up more than 200 years after the date when we first commenced to ignore the legal rights of Australia's first inhabitants. All the injustice that has occurred in that time through the failure of the laws and the courts to protect Indigenous property rights cannot be redressed in a short time or by further legislative erosion of the legal rights of Australia's Indigenous citizens.

Mabo gave us a new and exciting vision of Australia. It opened a window on the past and showed us what Australia can become. Removing or severely curtailing the rights of Indigenous Australians to negotiate regarding future acts on "their lands" will obscure the view from this window and work further injustice and dispossession on Indigenous Australians. On the other hand, preserving the right to negotiate offers Indigenous Australians the opportunity to construct a more beautiful Australia, one that all its people can participate in - a journey of the spirit in the future.

Footnotes

* Originally presented to the Rotary Club of Willoughby City, 6th June 1996.

** Member, National Native Title Tribunal.

1 (1992) 175 CLR 1

2 Mc Neil, K. "Racial Discrimination and Unilateral Extinguishment of Native Title" (1996) 1 Australian Indigenous Law Reporter 181.

3 Mabo, 175 CLR at p. 3 8

4 Ibid, at p. 57.

5 Unreported judgement, (Perth 18 November 1996) at p. 30.

6 Department of Prime Minister & Cabinet, Towards a More Workable Native Title Act: An Outline of Proposed Amendments, (May 1996).

7 Australian Institute of Company Directors, The New Competence in Mining, Melbourne 3rd October 1995.

8 Kormilda speech, Darwin 14th November 1995.

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