In June, 1992 the High Court created (or if you will, discovered) a remarkable new form of land title.1 The discovery was a prelude to years of political, legal and economic disruption which even sequestered judges might have anticipated. The discovery soon became an icon of correct and progressive thought, although it is tied to a concept that is usually anathema these days: native title is explicitly a race-based right.
Effectively, Mabo spread Australia-wide the "land rights" which the Commonwealth bestowed on the Northern Territory in 1976. The Hawke Government flirted with the idea of doing it by legislation in the 1980s, but Western Australia's Labor government gave the scheme short shrift.2
Little by little we may be led to the light. Mabo merely indicates that, whatever "native title" means, it might exist on the mainland as well as on Murray Island, and if so it resides in places, in forms and on terms yet to be revealed. In 1914-1918 war-weary troops in the trenches had a refrain which students of native title could echo now: "There is a Front, but damned if we know where."
The Court did make native title subject to the creation of freehold and certain other titles known before June, 1992, but this was a gesture rather than a concession. There must be compensation ("just terms") for any interference with the windfall, and there is no set-off for the billions spent on Aboriginal welfare since the 1970s, or for the Land Acquisition Fund, or for anything which Europeans brought to Australia.
The Court also relied for the permanence of its decree on the Racial Discrimination Act 1975 ("the RDA") and domestic politics based on perceived views of an international "community". The RDA and the "just terms" clause3 are the twin pillars of native title. It is curious that people who sneer at "Eurocentricity" and "cultural cringing" play domestic politics by appealing to "international opinions" before which every knee must bow. Consistency and intellectual chic are not bosom companions.
Time for Mabo Mark II.
The extreme vagueness of Mabo Mark I soon forced Parliament's hand, as it was no doubt meant to do. After months of bitter debate and melodramatic lobbying by "players" and "stakeholders", the Native Title Act 1993 ("the NTA") emerged in the dying days of the year. At the eleventh hour the farmers and graziers, on being told that native title would be confined to vacant Crown land, broke ranks with the miners. That was not one of history's finest tactical withdrawals. This time the miners are leaving the front running to the farmers.
The NTA does not tell us what native title is; it leaves that to courts and tribunals to compose as they go along. It creates a zealous National Native Title Tribunal ("NNTT") whose life will not be prolonged by making native title difficult to claim. It also creates a "right to negotiate" remarkable in two respects. It is more extensive than any right held by members of other races facing a compulsory acquisition of property, and it is available not only to people with established rights but also to those who merely claim them. (This fundamental distinction is constantly blurred by media references to claimants as "native title holders" or "traditional owners".)
Three years of the NTA have done little to allay the fears and uncertainties raised by Mabo Mark I and Mark II.
Time for Mabo Mark III.
On the strength of some brief and passing remarks in Mabo4 the Keating Government, many influential lawyers and the farmers who subsided at the last minute embraced the belief that pre-1994 leases were immune from native title. That article of faith was challenged in Wik and Thayorre Peoples v. Queensland ("Wik").5 In June, 1996 judgment in Wik was still reserved. I penned a paper for this Society's Adelaide conference in fear and trembling that at any moment Wik might deconstruct it when no time for revision remained. Now I return to the crystal ball for prospects of the Ten Point Plan and its elaboration in the Native Title Amendment Bill 1997 ("the Bill"). Overnight developments are less likely this time.
In Adelaide, somewhat against the tide, I advised caution. While I suspected that the majority in Wik would be smaller than in Mabo (and that came to pass), it seemed unlikely that the Court would "stunt the growth of its child by saying that all pre-1975 pastoral leases extinguish native title".6Wik finally arrived on 23 December, 1996; it is not only elected politicians who know how to release bad news when the country is at the beach. By the narrowest margin, the Court held that native title is not necessarily extinguished by pastoral leases but may co-exist with them. Instantly the acreage open to claims rose from 35 per cent to 78 per cent.7 It is noted in Wik itself that about 42 per cent of Australia is under pastoral leases, and that in some States the figure is as high as 80 per cent.8 Native title enthusiasts have ridiculed claims that Wik worsens the uncertainties of Mabo,9 but Justice McHugh and his brother Kirby10 do not agree. McHugh J. is convinced that "there will be serious uncertainty until this Court finally resolves the consequences [for] pastoral leases".11 Even Kirby J. admits that Wik "introduces an element of uncertainty into land title in Australia". But his Honour consoles himself -- if not Australia's farmers and graziers -- with the thought that "... this is no more than the result of the working out of the rules adopted in Mabo".
By August, 1997 about 600 claims had been lodged, some over vast areas and many overlapping.12 When the Bill appeared, more claimants rushed to register in the hope of avoiding the higher threshold test that it proposes.13Wik gives no answer to these questions: (1) For the umpteenth time, what is native title? (2) How difficult or easy is it to prove? (3) How does one find an anthropologist to question a claim? (4) How does one distinguish an "exclusive" Crown lease (immune from native title) from a "non-exclusive" one? (5) On leases of the latter sort, where do the lessee's rights end and Aborigines' rights begin? (6) How are demarcation disputes to be settled, at what expense, and at whose expense? (There are many more questions, but those niggling little examples will do.)
Time for Mabo Mark IV.
Long before the Wik decision, the Keating Government knew that the NTA was in need of significant amendments. A Bill appeared in November, 1995 but lapsed when a general election was called. On 27 June, 1996 the new Government produced another Bill, but shelved it until the High Court produced the son of Mabo.
Wik put the 1996 Bill back in the melting pot. Mr Howard's "Ten Point Plan" was published on 4 June, 1997, and on 4 September, 1997 it emerged as a Bill and was immediately referred to a Joint Parliamentary Committee. Despite assertions by the Prime Minister that major amendments will not be accepted, it is doubtful whether the Senate will pass the Bill in any semblance of its present form. But if the Bill does pass into law more or less intact it will then face the third house of the legislature, a High Court in the process of reconstruction.14 I shall concentrate on the Bill, which seeks to implement the Plan. In short form the Plan proposes:
As predicted in March this year,16 the Government has rejected demands by the Queensland Premier and others17 for a "one-point solution", namely the extinction of all native title, subject to compensation. The Government explains:18
Within a week of its appearance the Ten Point Plan was publicly criticised by two federal judges, causing international embarrassment.21 However, Father Frank Brennan SJ, a son of Chief Justice Sir Gerard Brennan and a leading proponent of "land rights", was more encouraging. Preferring the patois of American baseball to Australian sporting parlance, he ruled that the Plan was "within the ballpark".22 But alas, a self-appointed referee is always at risk of dismemberment, and Aboriginal politicians quickly made it clear that Brennan was not their spokesman on this occasion.23 Mr Noel Pearson depicted the Prime Minister trying to "wash the blood of extinguishment off his hands",24 and regretted that he and other Aboriginal "negotiators" were too kind to other parties when the original NTA was cobbled together.25 The Bill, Pearson declared, contains "vile proposals" which "must at all costs be stopped".26
Initially there were signs that the federal Opposition, sensing an electorate tired of a diet of Aboriginal affairs, would let the Bill through. But in early October the Opposition spokesman on Aboriginal affairs told the parliamentary committee that "some things are not negotiable".27 The proposed reduction of the right to negotiate is a major grievance.28 There have been dark hints of a double dissolution if the Bill is rejected,29 and one senior party administrator is confident that the Government would win the ensuing election "in a landslide".30 But other counsellors are against a confrontation of that kind.
This paper does not canvass every aspect of the Bill. It comments on:
1. The Validation of 1994-1996 Grants
The Bill would validate Crown grants, other than mining rights over vacant Crown land, made between the commencement of the NTA (1 January, 1994) and the Wik revelation on 23 December, 1996.31 The States would be allowed to pass similar legislation.32 It is likely that this point will be won after some huffing and puffing to enhance opponents' bargaining power in other areas. The case for validation is strong, because in 1993 the former Government (in close consultation with influential Aborigines) concluded that native title was not claimable over pastoral leases. According to Wik that was a serious mistake, but the fact remains that those who made it were influenced by the federal government,33 by the fulsome Preamble to the NTA34 and by an implication in the Act itself.35Wik was a windfall; it has been said repeatedly and without contradiction that in 1993-1995 leading Aboriginal "negotiators" accepted the conventional wisdom that all Crown leases extinguished native title.36 Consistent with this claim, not one legal challenge was made to the grants in question. The guardians of native title certainly do not lack public funds or an appetite for litigation, but this time they did not go "to the haven of the courts to be saved from the wolves at Parliament House".37 Against this background, and considering that compensation is payable to anyone adversely affected, it seems unlikely that politicians will fight the validation provisions to the death.
2. The Declaration of "Exclusive" Tenures
In reliance upon statements of the majority in Wik, it is proposed to declare that certain past Crown grants38 conferred exclusive possession and so extinguished any relevant native title.39 The list includes freeholds, commercial leases, "exclusive" agricultural and pastoral leases, residential leases, community purpose leases and other grants (not including mining titles) to be specified in a Schedule to the Act. Also in reliance on Wik, it will be declared that native title over "non-exclusive" leases is extinguished "to the extent that the grant involves ... rights ... that are inconsistent with the native title".40 Wik seems to accept41 that a Crown lease which confers exclusive possession extinguishes native title.
However, the "exclusive" list is controversial. Rural interests complain that the proposed Schedule omits many tenements which are exclusive,42 including a large number of leases in the Western Division of New South Wales.43 On the other hand, native title advocates contend that the "exclusive" declarations would effect extinguishment on a scale greater than any envisaged by Mabo, Wik or the NTA and so violate the RDA. In Queensland, the list would rule out native title over about 25 per cent of the State, but 58 per cent would still be claimable.44 The professed purpose of the "exclusive" list is to "confirm" past extinguishment of native title in a manner "consistent with the Wik decision".45 To the extent that the "exclusive" list accurately reflects that decision -- and it is recognised that perfection cannot be guaranteed46 -- it merely underlines legal history. It would only operate retrospectively47 to the extent (if any) that it treated as "exclusive possession acts"48 some transactions which, on a judicial view, were not originally of that kind. In such a case the Government would fall back on a compensation clause49 to counter claims of unlawful discrimination. If that were deemed insufficient, it is submitted that the legally good portions of the list could be "severed" from the bad.
3. Permission to extend "non-exclusive" Leases to other forms of "Primary Production"
These proposals are in aid of rural lessees who fear that any significant improvement to a non-exclusive holding, or a change from grazing to (say) cotton growing or "farmstay tourism", may be invalid unless they run the gauntlet of the right to negotiate.
It is proposed50 to allow any form of "primary production" on a non-exclusive lease without the need to negotiate.51 "Primary production" is widely defined52 to include grazing, farming, fishing, forestry, horticulture and aquaculture. Limited rights may also be granted to third parties.53 Any adverse effect upon a co-existing native title will attract compensation and the "non-extinguishment principle" will apply.54 These proposals are essentially a modification of the right to negotiate, and the Government's view is that such a special right may be wound back without contravening the RDA.
4. Interim Access Rights for Registered Native Title Claimants
These rights would accrue to persons interested in a registered claim if, on 23 December, 199655 they "regularly had physical access to the whole or part of the area ... for the purpose of carrying on one or more traditional activities". Pending judgment or settlement they would have access to the subject land "in the same way and to the same extent" as in the past, subject to the rights of the lessee.56 These rights would be additional to any access allowed by State land laws or the Aboriginal heritage legislation.57 "Traditional activity" means hunting, fishing, gathering, camping, performing ceremonies or visiting sites of significance.58 The proposed rights may make little difference in jurisdictions such as South Australia and Western Australia, where there are similar rights under State law.59 Graziers in Queensland and New South Wales may find them harder to accommodate.
Interim rights of access would not necessarily be enjoyed by every Aborigine who is party to a registered claim. Some invidious distinctions may be involved. There could well be disputes about who is and who is not entitled to access, or as to whether persons who are entitled to it are exceeding their licence. Such disputes could be taken to the Federal Court, which might refer them to mediation.60 There is a reasonable apprehension that, once people have interim access, a final decision in their favour could be a foregone conclusion. However, the difficulties are glossed over in a forlorn hope of reducing political opposition to the Bill.
5. The new Threshold Test and its effect on the Right to Negotiate
There is broad agreement that some tightening of the registration requirements is warranted. Decisions of federal judges61 have made registration -- and hence the right to negotiate -- absurdly easy to obtain, particularly since Wik doubled the area open to claims. "Ambit" claims are an embarrassment to responsible Aborigines and a burden to leaseholders.
Under the new regime, persons seeking to register claims under the NTA would have to give details of the subject land and the customary basis of the claim. Further, the Registrar would have to be satisfied "that at least one member of the native title claimant group currently has or previously had a traditional physical connection with the area covered by the application".62 This would certainly be an improvement upon the vapid treatment of "sufficient connection" in Mabo Mark I, to which the existing NTA adds nothing. In Mabo it is a question of "presence amounting to occupancy" from a time "long prior" to the "point of inquiry". A "substantial" connection may exist where claimants have continued "(so far as practicable) to observe the customs ... of that clan or group".63 The connection (physical, spiritual, contemporary or historical?) depends on native "laws and customs".64 There can be native title where the clan continues to occupy or use the land, and other possibilities remain open.65 One judge speaks of a title "rooted in physical possession", but gives no indication of how far back in time the search for it may be taken.66 According to the same judge, a customary connection may survive European influences, such as the "profound" effects of Christianity, the use of schools, other modern facilities and the adoption of a cash economy dependent on government allowances.
As an undergraduate exercise in Legal Drafting all this would leave something to be desired. On the crucial issue of "connection" the High Court has a great deal of room for manoeuvre.
Mabo's meanderings encouraged the Native Title Tribunal to doubt the necessity of a physical connection,67 and when a company associated with Charles Perkins lodged a claim over the Ernest Henry mine site in Queensland he insisted that it was irrelevant that most of the claimants did not live in the area.68 Anthropologists of the 1930s and 1940s, free from today's enticements of consultancy and expert-witness fees, were often unable to find consistent genealogies within a single century.69 The locations of native groups in the late 19th and 20th Centuries were often determined by mission sites, the only traditional link being "the natural affinity which we all have for the place of our birth".70 John Holmes, a Queensland Professor of geography and supporter of native title, considers that "on core pastoral lands ... or sub-coastal Queensland, ongoing Aboriginal connection is usually tenuous".71 Former Governor-General Bill Hayden represented the Queensland government in the Century Zinc mine negotiations. He reported that the Waanyi people were claiming land which they did not occupy until the 1890s.72 A few days after the Wik decision, a community development officer who worked in the relevant area from 1976 to 1984 said that he could not recall the name "Wik" being used then, and that when litigation began in 1993 "many of the claimants wondered what their lawyers and anthropologists meant by [it]". David Martin, an anthropologist who did post-graduate work in the same area, explains that "Wik" is a modern term covering "diverse" peoples "who have forged links through ceremonies, marriage and politics".73 It appears that some of the myriad clan names now appearing on native title application forms may be as recently settled as some "traditional lands".
"Sufficient connection" is one of the most elusive concepts in Mabo, and the effort to clarify it was one of the most difficult tasks for the framers of the Bill. Neither farmers nor Aborigines are content with the proposal "that at least one member of the ... group currently has or previously had a traditional physical connection" with the land. In the Aboriginal perspective it is too demanding; from the graziers' viewpoint, too loose.74 The chairman of ATSIC complains that the word "physical" was added "at the last moment".75 The President of the United Graziers' Association claims a promise by the Prime Minister that a current physical connection would be required, but "the word current' seems to have slipped out".76 Curiously, there is little public comment on the proposal that only one member of a claimant group need show the relevant connection. One wonders whether such people will become living treasures -- a species of Queen Bee -- to be rationed out to the many claimant groups. In June, 1997 a gold mine at Georgetown in north Queensland closed under pressure of a native title claim, throwing 40 per cent of the town's work force out of employment. The local mayor complained that only "two or three" of the claimant group lived in the area,77 but that could be enough to secure registration and the right to negotiate if the Bill becomes law.
However, the proposed threshold tests and other changes would see fewer claimants with a right to negotiate.78 The right would also be withdrawn from (a) acquisitions for public works and infrastructure facilities; (b) "primary production" developments on "non-exclusive" leases; (c) small-scale mining activities; (d) some renewals of mining titles; (e) the management of water resources and air space; and (f) developments within towns and cities.79 But it would still apply to compulsory acquisitions for the benefit of third parties (excepting infrastructure developments) and to many grants of onshore mining titles.80 The proposed reduction of the right to negotiate is at the epicentre of the storm, which is not in the least surprising. The right is technically procedural, but in reality it may be much more valuable than the unproved native title which it purports to protect. Items which cannot be awarded at arbitration, such as private "royalties"81 or profit shares,82 may be obtained by "voluntary agreement" if a developer or a government wants peace and faster progress and believes it can absorb the cost or pass it on. (Governments can always pass it on, but this is not a luxury which many countrymen can afford.)
Few developments are so large as Queensland's Century Zinc mine, but in that case people who will never have to prove native title now will receive the equivalent of $90 million from the company and the State.83 (There are already internecine disputes about the distribution of the bounty84 but they need not detain us here.) Relatively small projects can yield handsome payments without proof; a gold mine at Tenterfield, NSW recently paid $1.3 million to get rid of a native title claim.85 Developers disposed to buy claimants off may be encouraged by a Federal Court decision86 that compensation in the form of private "royalties" and bursaries for Aboriginal students is a valid tax deduction.
The political and economic value of the right to negotiate ensures that any proposal to modify it will be fought tooth and nail in the Parliament, the media and the courts as an unconstitutional interference with property and a sacrilege against the RDA. The native title lobby claims that the right to negotiate is an intrinsic part of native title,87 but it is not part of the common law revelation in Mabo. It is a "special measure" not enjoyed by others. Indeed, people who acquire property by purchase rather than a novel judicial decree must establish their titles before they contest an acquisition.
The proposed changes to the right to negotiate are not extinctions of native title. People who now have a right to negotiate, but who will lose it if the Bill passes, may still pursue their claims at common law.88 Provided that native title claimants are no worse off than established property owners facing compulsory acquisition, they are not victims of discrimination; they have merely had a procedural privilege modified or withdrawn. (Indeed, as mere claimants they are still better off than established owners.)
The Government's position is that the right to negotiate is a "special measure" (that is, reverse discrimination), which can be reduced or withdrawn at Parliament's discretion without affecting the RDA or the international agreement on which it is based.89 (There is a compensation backstop in case the High Court rejects this argument.)90
The new threshold test would reach back to 27 June, 1996.91 Retrospective legislation is not unconstitutional; it is common in the field of taxation. When the law in question is merely procedural, there is not even a common law presumption against it.92
6. Changes of Interest to the Mining Industry
Mining titles granted over Crown leaseholds between 1 January, 1994 and 23 December, 1996 would be validated. The "exclusive possession" list, if effective, would assist miners as well as farmers; if a farmer's lease is immune from native title, a miner who seeks secondary rights over that lease may also forget about the right to negotiate.
The right to negotiate would cease to apply to many mining developments.93 In cases where it still applied it could be satisfied by approved State procedures, such as the objection and compensation provisions of State mining laws, suitably amended. Applications for the registration of dubious native title claims could be opposed by placing relevant information before the Registrar.94 The right to negotiate would apply once only to all acts constituting a single project.95 This would be of considerable value; at present, if there is a native title claim, the miner must "negotiate" at the exploration stage, at any intermediate stage96 and again when a lease is sought. It is also significant that the States could specify the stage of a development at which the once-only right to negotiate would arise.97 Normally the cash value of that right is greatest when a commercial deposit has been proved, and the miner and the State government want production to begin quickly. If the right had to be exercised at the exploration stage, "traditional owners" would tend to make less ambitious demands and mining companies would consider less munificent settlements.
The time for negotiations would be 4 months in all cases;98 presently it is 6 months when a production title is sought. The NNTT would have to complete an arbitration "as soon as practicable", and the Minister could intervene in cases of delay.99 The position regarding renewals and extensions of mining titles granted before 23 December, 1996 would be clarified and improved. The right to negotiate would not apply, provided that the area is not enlarged and new proprietary rights are not created.100 An extension longer than the original term would not entail negotiations. There would be compensation for any consequent interference with native title, and the non-extinguishment principle would apply.101 The Bill would allow the States to confirm their ownership of mineral deposits. (However, in most if not all jurisdictions the Crown appropriated minerals long ago.)102 In Wik the trial judge dismissed a claim to minerals, and that ruling was not questioned in the High Court.103
7. Facilitation of Agreements
The Government is endeavouring to "sell" the Bill by placing greater emphasis on mediation and extra-curial settlements.104 Prima facie this is a "motherhood" issue, but in practice there is tension between an expedient desire to use already-powerful Aboriginal bodies -- much to their delight105 -- as organisers and rationalisers of claims, and on the other hand, a policy of not granting monopolies to regional native title brokers. Monopoly is a prospect feared by some Aborigines106 as well as respondents with limited resources. But bureaucratic convenience shows every sign of winning.107 A formal assurance that people who do not trust the brokers may "go it alone" sits beside statements that "Commonwealth funding for claimants will be channelled mainly through the representative [bodies]"108 and advertisements for their superior resources and experience.109 The over-arching authority of ATSIC would remain.110 Claimants refused assistance by regional brokers would have a right of appeal to ATSIC.111 ATSIC would be relied on to report unsatisfactory brokers to the Minister, who (if suitably informed) could demand information and appoint special auditors.112 The efficacy of these provisions would depend greatly upon the politics and diligence of the incumbent Minister. ATSIC resents even this degree of supervision, and in blithe disregard of recent history113 it claims that "accountability" is already "stringent and adequate".114 The Bill does little to guard against abuses of power by the brokers, or to ensure that benefits exacted by negotiation are fairly and efficiently distributed. Complaints of maladministration of the Century Zinc mine settlement115 were followed by reports that Aborigines in Kakadu National Park have gained surprisingly little from $40 million in mining "royalties" paid to their representatives in the last 17 years.116 Mining companies which enjoy good relations with local Aborigines and prefer to deal with them direct may notice little improvement. Recently a Miss Hobbs gave evidence to the Joint Parliamentary Committee describing her experience with native title "consultants" and "negotiators" in Western Australia.117 She complained that they allow no contact with the nominal claimants, and will only talk to company representatives in consideration of substantial fees charged on a daily basis -- hardly an incentive to expedite a settlement. (One's fancy strays to extra-curricular business practices in certain foreign climes.)
Not a word of her evidence appeared in Brisbane, Sydney or national newspapers. They concentrated on evidence yet to be given by Mr Sean Flood who, so they said, was bravely resigning from the Native Title Tribunal in order to fight the Bill publicly.118 In an earlier paper I quoted a remarkable fulmination in one of Mr Flood's decisions.119 In truth, his position became untenable several months before the recent gesture, when he embarrassed President French by a public denunciation of the Ten Point Plan.120 As Miss Hobbs indicates, mediation is often not a quick, cheap and efficient alternative to litigation. The Century Zinc saga dragged on for five years. A representative of the Queensland government was paid $180,000 and his staff cost a further $542,700, not to mention travelling expenses and their public service salaries. The Carpentaria Land Council received $900,000 to "participate in negotiations".121 Readers who wonder whether mediation is quite so sharing and caring as its disciples claim may read the comments of Mr Justice Young quoted in an earlier paper.122
8. A Compensation Cap and Time Limits
Proposed s. 51A, which would apply to claims filed before or after123 the Bill becomes law, would limit compensation to "the amount that would be payable [in the event of] a compulsory acquisition of a freehold estate in the land".124 This is probably meant to put paid to imaginative claims based on "spiritual attachment" or "psychological trauma" suggested by some native title tribunalists.125 However, the limit is open to an argument that in remote areas, where land values are low, a freehold valuation would not fully compensate native title holders for rights lost or diminished.
On the matter of time limits, it is proposed to limit native title applications to six years following the enactment of a new s. 13(1A). Claims for compensation would have to be filed within six years after the Bill becomes law, or within six years of the relevant "future act".126 Critics assert that this would be unconstitutional, racially discriminatory, or both. Their reasons are not obvious. Most legal actions are subject to time limits, some as short as three years. If and when the "sunset clause" becomes law, it will then be five or six years since Mabo Mark I, and the additional time in the Bill will result in a liberal 12 year limit for native title claims.
9. The Role of the Federal Court
The Bill does not question the eminently questionable assumption that native title claims are matters for the Federal Court.127 While the Commonwealth may graciously accredit State courts and tribunals for NTA purposes,128 claimants could still go forum-shopping for sympathetic federal adjudicators remote from the effects of fashionable rulings.
The proper tribunals for native title claims are the State Supreme Courts. The Federal Court was set up just twenty years ago to administer Commonwealth legislation, perhaps in the hope that it would construe it more generously than our traditional courts. Federal Court appointments quietly proliferate in Canberra, and attract less professional scrutiny than Supreme Court nominations. Surprise appointments are not rare.
Most members of the Federal Court were appointed by the monochrome federal governments of 1983-1996. The title of federal "Justice" is too often used to accredit special-purpose tribunals short on law and long on social engineering. Several federal judges consider themselves immune from the self-restraint which the judiciary normally observes in matters of politics. One who would no doubt relish a leading role in native title matters frequently and freely pontificates on highly political subjects.
The State courts comprise a broader selection of lawyers appointed by a wider variety of governments. The Supreme Courts are the only courts with all-round experience of major criminal and civil litigation. Such common law jurisdiction as the Federal Court possesses was annexed from State courts by self-serving interpretations of a quaintly named "pendant jurisdiction".
The Federal Court's patchwork of civil jurisdiction is based on broad-brush statutes such as the Trade Practices Act, well described by a distinguished State judge as more like the terms of reference for a roving Royal Commission than a definition of legal rights. Sweeping discretions breed loose jurisprudence and judicial adventurism. The Federal Court took "judicial review", a strictly limited form of appeal, so close to second-guessing the Government that even the Mason Court felt bound to call a halt.129 In an area like native title, where the law is vague and the chances of obtaining favourable evidence are so much on the claimants' side,130 it is vital to have a broad spectrum of judicial opinion and a rigorous, apolitical examination of evidence.
While the Bill would wind back some of the free-wheeling procedures in native title cases,131 which have already spawned some bizarre practices,132 it would still allow the Federal Court to ignore the rules of evidence "to the extent that the court ... orders"133 -- a "Clayton's rule" if ever there was one!
The Federal Court is not the appropriate forum for litigation of this kind134 -- especially if it develops (as well it may) an informal cadre of "specialists" promoted from native title tribunals or kindred legal aid bureaux.
Native title is not a child of the federal Constitution or of any Commonwealth statute. Native title parades as common law, and the High Court has recently and expressly declared that the common law cannot be turned into a law of the Commonwealth.135 (In a moment of delightful unconscious irony, the Court explained that this would improperly "confer legislative power on the courts"!) Native title affects a great deal of land vested in the States, and land titles and land management are quintessential State concerns.
10. "The Hindmarsh Proposition"
The spirit of Hindmarsh still walks abroad, and now offers the High Court a golden opportunity for judicial legislation. In a pending challenge to a federal law passed to save taxpayers yet another forensic meditation on "secret women's business", the Court is asked to decree that laws based on the Commonwealth's "race power"136 are valid only when they bestow benefits on the race in question.
The secret women, it seems, have a bottomless legal aid fund. If the Court agrees with them, the logical consequence would be that federal laws with respect to Aborigines could only be amended so as to maintain or increase special benefits for that race. If that is good law, any federal government will have to think long and hard before it ever uses the "race power" again! The Hindmarsh Proposition would create a unique exception to the rule that a power to enact legislation includes power to repeal it, and would pave the way for a root and branch attack on the present Bill.
It will be interesting to see whether the Hindmarsh Proposition is a mite too adventurous for a High Court under reconstruction. Hints that the Court may be resigning itself to a more modest legislative role appear in Thorpe v. Commonwealth (No. 3)137 (pace Justice Toohey, Australia has no "fiduciary duty to the original peoples of this land") and Kruger138 (former Northern Territory laws affecting the "stolen children" were not invalid and are not now legally actionable).
The Hindmarsh Proposition ignores the history and intent of s. 51 (xxvi) of the Constitution. Unpalatable as it may be, that clause was not designed solely for the creation of special benefits. A prime object was to control immigration by Chinese, Pacific islanders and others.139 It appears that Sir Samuel Griffith had the repatriation of Queensland's "Kanaka" labourers in mind.140 In 1967, amid the warm glow and inevitably limited foresight accompanying the race power referendum,141 Percy Joske, a constitutional lawyer, observed:142
The question received some attention in High Court judgments in l982143 and 1983,144 several years after the RDA arrived.145 In Koowarta v. Bjelke-Petersen, Gibbs CJ observed:146
And Stephen J. remarked:147
Wilson J. recognised148 that there are now political limits to the use of the power, but he did not assert as a legal principle that it can only be a source of privilege:
It should be noted that these statements related to a purely negative policy to minimise grants of Crown leases to Aborigines. The judges in Koowarta may have been even less attracted to the Hindmarsh Proposition if they had been dealing with a complex of benefits and controls such as the present Bill. Even if the present Court were inclined to accept the Proposition, would it be a judicial function to chop the Bill into pieces, sort them into "benefit" and "detriment" piles, and conduct some sort of political weigh-in? The Government's position is that overall the Bill is beneficial, although the Constitution does not require it to be so.149 Most people would agree that "race" laws are a more delicate political exercise in 1997 than they were in 1901, but the Hindmarsh Proposition goes much further. It asks the High Court to say that something which several Justices accepted in the 1980s (namely, the possibility of a "detrimental" race law) is a breach of the Constitution in 1997.
It is not enough to say that an exception regarding the "Aboriginal race"150 was removed from the race power in 1967. All that follows is that Aborigines are now no more exempt from its operation -- positive or negative -- than the people of any other race. It would be better if there were no "race power" at all; it is odd that we have a racial principle in the Constitution and a pious horror of any such thing in the RDA. Hence, one supposes, the temptation to avoid embarrassment by confining s. 51 (xxvi) to occasions when gifts are given. But ordinary statutes, whatever their moral or political appeal, cannot override the Constitution.
In a dissenting judgment in Koowarta, Murphy J. made the long leap from the view that non-beneficial uses of the race power are undesirable to the legal conclusion that they are unconstitutional,151 characteristically proceeding by assertion rather than demonstration. But in the very next year Mason J. accepted that the power may be used not only to "protect" but also to "regulate and control".152 Deane J, a vehement member of the majority in Mabo, said this in 1983:
Clearly s. 51(xxvi) does include the power to confer special benefits upon Aborigines. But it does not follow -- and Deane J. did not suggest -- that the special benefits exhaust the ambit of the power.
In the same case Brennan J. said:154
There are two suggestions here: (1) That in voting for a transfer of Aboriginal affairs from the States to the Commonwealth, Australians intended (and somehow implicitly enacted) that never again could the Commonwealth "control and regulate" Aborigines as such; and (2) that the RDA is an enactment which cannot be amended because in its 1975 form it has some quasi-constitutional status. What tangled webs our oligarchs weave from the wool of international conventions! However, even Justice Brennan went no further than to speak of special benefits as the "primary object of the power".
The High Court was created as a court of law, and at law the RDA is a non-constitutional provision which cannot tie another Parliament's hands.155 Indeed, s. 7(2) of the existing NTA156 quietly amended the RDA by excluding its censorship from provisions validating Crown grants of 1975 - 1993.157 Some see magic in the fact that s. 51(xxvi) speaks of laws "for" a chosen race.158 Let us hope that not too much of our money is spent on legalistic torture of that humble preposition. We have noted recent authorities which admit that the race power cuts each way. The very same preposition ("for") appears in s. 122 of the Constitution,159 which has repeatedly been dubbed "as large and universal a power ... as can be granted".160 Even Murphy J. could not imagine how s. 122 could be made any wider.161 In s. 122 "for" means "with respect to", and it is difficult to see a legal reason for interpreting s. 51(xxvi) any differently. After all, the Constitution does not say: "The Parliament shall have power to make laws for ... the people of any race". No: the race power is governed by the same all-embracing phrase which precedes all the other grants of federal power in s. 51 of the Constitution: "with respect to". Wisdom in the use of the race power is a matter of morality and politics, not law.
Supporters of the Hindmarsh Proposition contend that any departure from the RDA is a breach of the international agreement on which it is based.162 But this overlooks the fact that neither the RDA nor its parent treaty obliges the Commonwealth to adopt "special measures" in favour of Aborigines or people of any other race. Still less does it require the indefinite retention of such measures, if adopted.163 It appears that the Hindmarsh case will be heard in May next year.164 In that event the Chief Justice, soon to retire, is unlikely to be involved. But in any event, the principles of apprehended bias which he and his colleagues so rightly emphasise165 counsel him not to sit; a near relative is one of the keenest supporters of native title and is now actively promoting the Hindmarsh Proposition.166 I say nothing of the composition of the Court in Mabo Mark I.
If the Bill is recognisable when it
leaves the Senate it will face unpredictable litigation167
and political turbulence. The native title lobby is probably as
well funded and well-organised as any major political party; witness
the almost daily stream of media items, most of them in grievance
mode -- alleged wrongs of the fathers are now the currency of
the sons. How much of the residue (if any) will the High Court
leave intact? Will it forge ahead regardless of expense, uncertainty
and social strain or discreetly withdraw, murmuring that Mabo
did seem like a good idea at the time