THE CONSEQUENCES OF THE MABO CASE
The High Court in its recent decision of Mabo v. The State of Queensland has recognised a form of native title for the first time under the common law of Australia. There have of course been many statutory rights of one kind or another created over land in Australia for Aboriginal people. These have in many cases been highly controversial and have led to much dissatisfaction in some cases by the Aborigines they have sought to benefit and in other cases on the part of the members of the community who have been excluded from these lands.
By its decision the High Court has, far from pouring oil on troubled waters, fanned a storm which could result in heavy seas of controversy and conflict about this highly sensitive issue.
The decision overturns legal theory, the practice of governments and the understanding of Parliaments about the Crown ownership of land in Australia since the foundation of the colony of New South Wales. In doing so it overrules a long line of Australian judicial precedents which consistently supported and underpinned the traditional view. That view held that the declaration of sovereignty on behalf of the Crown in Australia carried with it the Crown ownership of all the land of the territory so acquired. It was most clearly enunciated in the Supreme Court of New South Wales in 1847 by its Chief Justice:
... that the waste lands of this Colony are, and ever have been, from the time of its first settlement in 1788, in the Crown; that they are, and ever have been, ... in the Sovereign's possession; and that, as his or her property, they have been and may now be effectually granted to subjects of the crown. (1)
In short the High Court decision rejects that view and draws a clear distinction between sovereignty over land and the ownership of land. This leaves room for the Court to recognise a form of native title but in order to do so it had further to reject the long held view that Australia prior to 1788 was terra nullius. This doctrine was not confined to totally uninhabited territory, but was extended to include lands the inhabitants of which were so primitive that there was no recognisable sovereign or proprietor with whom the settlers could deal. In rejecting this view the High Court had to make some pretty daring legal findings and herein lie the more worrying aspects of the decision.
There can be no doubt that the decision is much coloured by the Judges' views about Aboriginal history and the Aborigines' relationship to the land. This enables them not only to reject the application of terra nullius but also to apply their own views of human rights and social justice.
NATIVE TITLE
Before proceeding to discuss the consequences of this decision, it is desirable to outline the main features of the native title which the Court has recognised. This task itself presents some difficulties, because the Court was not united about the features of the title, although a majority of four out of the seven Justices agreed to the order of the Court. Its main features are as follows:
- The title is essentially one of possession and enjoyment of land "as against the whole world". However, the elements of any particular title must be ascertained on the facts of each case. These are found in the laws and customs of the indigenous people who are claiming the title. These may in fact have undergone change since Crown sovereignty occurred. The boundaries of the land, the number and identity of the owners, and the nature of the enjoyment of the land are all matters which have to be found by evidence. This first occurred in the landmark decision of Blackburn J in Milirrpum v. Nabalco Pty Ltd (1971). He found in that case a system that was "subtle and elaborate" and could aptly be called "a government of laws and not of men". However in the Supreme Court of Queensland, Moynihan J in finding the facts in Mabo appears to have found less certainty about the nature of the native title on Mer (Murray Islands):
The ultimate determining factor in terms of the control and disposition of land was simply what was acceptable in terms of social harmony and the capacity of an individual to impose his will on the community. This was easier done if the claim had the appearance of certain expected characteristics. (2)
- The title can be extinguished by a valid exercise of the power of the State Parliament or State Government which creates a situation inconsistent with the enjoyment of native title. For instance, the grant of a freehold or leasehold title is inconsistent, whereas the mere setting aside of land for a national park or a reserve would not be. The grant of a lesser interest such as an authority to prospect for minerals may or may not be inconsistent depending on all the circumstances. The powers of the State Parliament may be limited by an overriding Commonwealth law such as the Racial Discrimination Act 1975.
- The title can only be held by the indigenous people who can trace biological descent from those who have enjoyed the use and possession of the land since the declaration of sovereignty on behalf of the Crown. There is some ambiguity about the nature of "biological descent", as it seems necessary to establish recognition by the group of a person's membership. This would clearly be a matter to be determined on the evidence. Title, however, is extinguished if this group abandoned the land or over time lost its connection with it. This again would be a matter to be ascertained on the facts and may well be a controversial aspect of establishing the title.
- The title cannot be alienated other than within the group according to its own customs. This of course is consistent with the various forms of statutory Aboriginal title which have been created in various parts of Australia. It may, however, be surrendered to the Crown. When the title is extinguished by whatever means, the Crown becomes the absolute owner.
The foregoing summary has necessarily been compressed, but it is clear that there is great scope for further legal development as the circumstances of different cases are brought to light. The nature of the title is at this stage vague and unsatisfactory, and will undoubtedly cause much debate and demand for its contents to be more definitive.
The extinguishment of the title by inconsistent Crown grant is not at all clear and apparently does not depend on the intention of the grantor but on its effect on the enjoyment of the land by the native owners. For instance, setting aside land for future public use for a school or a road would not be inconsistent with the title, but the construction of the building or the road would be. The grant of a freehold title, however, would seem certainly inconsistent.
The vagueness of the title could have some benefits for the native owners because it will enable them to contend for survival of the title against a variety of allegedly inconsistent allocations of the land by the Crown or Parliament.
These features of the native title highlight the uncertainties which are faced by both those claiming the title and those seeking to displace it. However it seems that the claim to a native title will be a useful bargaining tool and is likely to be more potent as a threat than an achievement. Furthermore for those reasons there will be an equal interest in obtaining more certainty by legislative means for both those who wish to extend the title as well as those who wish to restrict or abolish it.
JUDICIAL ROLE
If the Mabo case were confined to the special situation on the island of Mer in the Torres Strait, there would be little need to be concerned about it. However the High Court clearly contemplated that it is not so confined and the Judges obviously saw themselves laying down a new rule of justice and human rights for Aboriginal people wherever in Australia it is possible for them to satisfy the new rules.
In this case the legal role of the High Court was not an interpretation of the Constitution but a declaration about the common law. That of course is also clearly within its jurisdiction and the High Court has been very innovative in recent years in exercising that judicial role. However, in theory, the Courts are only declaring what the common law is. In doing so they in fact develop new law from time to time. However in this case the High Court was quite clearly changing what had been settled law.
Brennan J is quite explicit about this:
It must be acknowledged that, to state the common law in this way involves the overruling of cases which have held the contrary. To maintain the authority of those cases would destroy the equality of all Australian citizens before the law. The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterising the indigenous inhabitants of the Australian colonies as people too low in the scale of social organisation to be acknowledged as possessing rights and interest in land. (3)
It is a disturbing feature of the case that six out of the seven Justices have been prepared to change the foundation of the land law in Australia after that law has been settled for two hundred years. The Court has clearly assumed a legislative power rather than exercising a judicial power.
Only the sole dissenter, Dawson J, pointed this out:
Accordingly, if traditional land rights (or at least rights akin to them) are to be afforded to the inhabitants of the Murray Islands, the responsibility, both legal and moral, lies with the legislature and not with the courts. (4)
Moreover there is some exquisite irony in the fact that the High Court has chosen to overrule a line of Australian cases in favour of a line of Privy Council decisions about the recognition of native title in other parts of the former British Empire. For the past thirty years the High Court has sought to establish a uniquely Australian view of the common law instead of following UK decisions. It has relished the freedom from the Privy Council which Australian Parliaments have given it. Yet in the full flush of its new freedom it has chosen in this case the views of English jurists over those of Australians.
Admittedly the case for Eddie Mabo and his fellow Islanders was morally a strong one and I do not want to express any lack of sympathy for it. They have a direct affinity with a specific area of land. Their lifestyle appears from the evidence to be very different from that of most traditional Aborigines on the mainland. However the High Court itself seems open to the charge that it overlooked the old saying, "hard cases make bad law".
What therefore are the consequences of this decision?
1 There is a danger in it for the standing of the High Court.
The Court has made a number of very controversial decisions and has been frequently accused of centralism, but there has always been strong legal justification for whatever views of the Constitution individual Judges may have had, for example, in the Concrete Pipes Case (1971), Seas and Submerged Lands Case (1975), and Tasmanian Dam Case (1983). Although in this case the High Court has relied on an impressive array of precedents from other jurisdictions, one cannot avoid feeling that its decision was based on their views of Australian history and human rights. (5)
I have already referred to their assessment of Aboriginal history. Two of the judges (Deane and Gaudron JJ) became highly emotive in the language they used to describe "... the dispossession of the Aboriginal people of most of their traditional lands". They held that "... the nation as a whole must remain diminished" until "... those past injustices" are rectified. (6) This language was so non-judicial that at the end of their judgment they felt compelled to explain why they used it.
This should be a warning for those who are stridently arguing for a bill of rights to be inserted in our Constitution. When judges are confronted with vague general statements of political ideas it is difficult for them to divorce their personal views from their legal duty. The alacrity with which they have usurped the legislative role in this case is a clear indication of the ease with which the legislative mantle may be assumed by the Court when it feels free to do so or is invited to do so as it would be with a bill of rights.
2 Although it is impossible to quantify, there will certainly be a number of claims launched to establish native titles.
Although the Court has placed a number of major restrictions on the recognition of such title, it is available, not only in respect of unallocated Crown land, but also where the use of allocated land is still consistent with the enjoyment of native title. I have already mentioned some examples which have been given by the Court. These themselves (for example, mineral exploration rights and national parks) cover significant portions of Australia, although mineral exploration rights may overlap areas which are the subject of clearly inconsistent grants.
Large parts of Australia have been set aside as Aboriginal reserves, and it would seem most likely that this land could be subject to claim. It may well be that some Aborigines would therefore be able to obtain a far better title than rights enjoyed on a reserve. The Northern Territory (under a Commonwealth law) and some States have created regimes of Aboriginal land rights. Depending on the interpretation of these schemes, native title may well survive them.
Although the Court identified grants of leasehold as well as freehold title as extinguishing native title, it cannot be assumed that pastoral leases do so. The use of the land by a lessee under a pastoral lease is limited (it cannot, for example, be cultivated) and is subject to a number of other rights, such as roads, stock routes and mineral exploration. Although some parts of the pastoral lease would be inconsistent with the native title (for example, homestead, outbuildings, stockyards, bores, and so on), other parts of it may well be consistent. It is at the least a grey area. Yet again it would depend upon the facts of each case. It is the variety and uncertainty of these situations which are troublesome.
It seems inevitable, therefore, that there will be new hurdles, particularly for the mining industry and to a lesser extent the tourism and pastoral industries. This uncertainty will have disproportionate effects in different parts of Australia. For instance a large proportion of Western Australian Crown land is still unallocated (about 37 per cent) and it would seem to provide the most fertile source for claims. However no part of Australia will be exempt. If land set aside for use and enjoyment by Aborigines may also be claimed, then the Northern Territory and Queensland, as well as New South Wales and South Australia, will also be targeted.
The point is not so much the extent of land which may ultimately be successfully claimed but the continuing uncertainty, expense and trouble which is bound to be created. It will be yet another disincentive to at least two of our most important industries.
Another problem with the title is that rights under it cannot be alienated to persons outside the indigenous group in which it is vested. The court appears to assume that this follows from the nature of the title, but that does not appear to be justified nor is it desirable. Unlike the statutory schemes which have created Aboriginal land rights, this title is based on the recognition of a legal right and is not created as a matter of social policy. There seems to be no legal or social reason why the bundle of rights under the title, or some of them, should not be assigned to outsiders. There might be difficulties about deciding such a question within the group, but that is another matter.
A limitation of this kind on the use of land is economically regressive. Economic development is clearly impeded by land being taken out of the market which should not be done unless there are good reasons, and there do not appear to be any in this case.
3 So much for legal and economic consequences, what about the political consequences?
The assumptions about Aboriginal history which have so influenced the Justices of the High Court are not shared by large numbers of their fellow Australians. That may be a criticism of the latter but the political reality is that pressures will be brought to bear on both State and Federal governments to solve the problem created by Mabo.
The Mabo case was launched in 1982, and in 1985, before it reached the Full Court of the High Court, the Queensland Parliament passed a State Act which declared that upon the acquisition of sovereignty by Queensland over the Torres Strait Islands (which included the area claimed), they were free from all other rights and claims, and became waste lands of the Crown in Queensland. This law, if valid, would have destroyed the Mabo claim, and as a separate issue the High Court decided to deal with the effect of the statute. It held in 1988 that the Queensland Act was invalid because it was inconsistent with Section 10(1) of the Commonwealth's Racial Discrimination Act 1975.
Although the reasoning is somewhat technical, the essence of the decision is that the Queensland Act deprived "persons of a particular race" of a right (not necessarily a legal right) enjoyed by "persons of another race". The Act did preserve Crown grants to non-Aboriginal persons on the Islands. This could provide a narrow ground for the decision; however, the reasoning seemed to be wider. All State Parliaments in Australia have laws providing for compensation for the resumption of land. At the very least, a State Act which purported to extinguish native title without compensation would seem to be inconsistent with this decision.
The six Judges comprising the majority in the second Mabo case have emphasised the significance of this judgment in respect of their decision that the native title is subject to the power of State Parliaments and State Governments. Three of the six Judges have held, for other reasons, that compensation would have to be paid for any diminution of native title by a State legislature or government. As far as the exercise of Commonwealth powers is concerned there is a constitutional guarantee of just compensation for the acquisition of property.
Accordingly, the combined effect of the two Mabo decisions presents grave difficulties for any State which seeks to restrict the native title. It seems likely that there will be greater pressures on State Parliaments to restrict the title than to expand it and, if they succumb to these pressures, they will at least be obliged to provide compensation which they may not be able to afford.
As far as the Commonwealth is concerned, it will be called upon to prevent State Parliaments from restricting the title and it may be called upon to enhance the title in view of its limited and uncertain nature.
In these circumstances it seems inevitable that there will be renewed calls for a national solution which will itself be divisive.
Now that the High Court has recognised the existence of such a title at common law, the current State by State approaches will be harder to justify. The Commonwealth Parliament will be asked to ensure that there is at least a common workable standard. Those who believe the new title is too weak, and those who want to abolish or restrict it will have a common interest to promote a national solution.
MABO AND ORAL TRADITIONS
In the course of his 1971 judgment in Milirrpum v. Nabalco Pty Ltd, in which he re-affirmed the long held doctrine that Australia was terra nullius, Justice Blackburn made a statement that now has a certain bitter irony. He thought the evidence showed that the Aborigines of the Gove Peninsula had a system which was "remarkably free from the vagaries of personal whim or influence ... 'a government of laws and not of men' ". (7) After the Mabo case, which overturned Blackburn's judgment about terra nullius, it could be asked whether such a description still applies to Australia. As Paddy McGuinness has written, the High Court is now refusing "to follow precedent unless it feels like it", thus creating a situation where we are "in a lawless condition as far as the interpretations of our Constitution are concerned". (8)
Almost as disturbing is Justice Brennan's apparent claim, in the lead judgment in the Mabo case, that it is "discriminatory denigration" to make evaluative comparisons about the development of the "social organization and customs" of indigenous people. (9) This is the stratagem he uses to absolve the High Court from considering the differences between the social organisation of Aborigines and the people who were the plaintiffs in the Mabo case, the Meriam of the Murray Islands in the Torres Strait. From this position, "the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not". (10)
Some of Justice Brennan's remarks about discrimination suggest that he is confusing the moral worth of individual human beings with the worth of the cultural traditions and institutions which shape their lives and assist, or hinder, their adaptation to the world. Unfortunately this is a confusion that is widespread, and part of the blame must lie with anthropologists, who have tended to speak -- wrongly, as many now acknowledge -- as though cultures were real entities which were inseparable components of individuals and their identity. (11) Consequently, the High Court seems to be in danger of embracing the doctrine of cultural relativism. Among other things, this doctrine would have the curious effect of making it offensive to claim that the social and cultural conditions that have given rise to the Court's own existence are superior to the conditions under which its existence would be impossible.
But it is quite proper to ask whether, at a given time, a specific group of people possess certain kinds of political or legal institutions, and to consider the relationships with the natural and human environment these institutions may either prevent or make possible. And if settled law is to be overturned in the light of new "facts", it is reasonable to consider whether people encountered by eighteenth-century settlers possessed the institutions and concepts that would have enabled them to enter into agreements that would have been legally comprehensible at the time. (12) Furthermore, the later identification of such institutions and concepts by anthropologists or others, usually after many years of interaction between indigenous peoples and the newcomers, does not necessarily mean that they were present at the time of first contact. People can adopt new ideas and institutions with remarkable speed when opportunities arise or circumstances change, a matter I will be discussing in more detail below. Thus, contra Justice Brennan, statements about the specific rights or interests a particular people hold in land cannot be seen as discriminating "on the basis of race or ethnic origin" by denying "the capacity [my emphasis] of some categories of indigenous inhabitants". (13)
The Meriam were identified as offering the strongest test to the terra nullius doctrine by a group of Torres Strait Islanders and "others interested in challenging the principle ... upon which the white Australian nation is founded" during a 1981 conference on land rights at James Cook University in Townsville. (14) Unlike Australian Aborigines, the Meriam were cultivators who lived in settled communities and made gardens in defined areas. Land was not held under some form of communal title -- the basis on which the Milirrpum claim had been made -- but was owned by individuals or family groups. Residential and garden land was normally inherited in the male line. (15) Justice Moynihan of the Queensland Supreme Court, to whom the Mabo case was remitted for a determination of key facts, stated that he was "dealing with a very different society and very different relationships and attitudes towards land" from those of Milirrpum's people. (16)
Indeed, of all the Melanesian people of the Torres Strait, the Meriam are probably the most different from Australian Aborigines. Jeremy Beckett, an anthropologist whose research experience in the region spans over three decades, notes that the Meriam were unusual, even amongst other Torres Strait Islanders, in the extent of their commitment to cultivation. (17) Furthermore, unlike the people of the central and western islands who speak an Aboriginal language, the Meriam language is member of the Eastern Trans-Fly language family of Papua New Guinea. As Justice Brennan recognises, the people probably came from PNG, although whether they arrived "generations before the first European contact ... at the end of the 18th century", (18) or shortly before, is a matter for conjecture.
There are other circumstances that make the Murray Islands situation very dissimilar from the situation applicable throughout mainland Australia. The Murray Islands were annexed in 1879, by which time the Meriam had had at least eighty years of contact with Europeans, some of which was intense. In the 1830s two British castaways spent two years there. The London Missionary Society came to the Murray Islands around 1871, and within months the whole population had come under its influence and were following many aspects of Christian teaching. The year before annexation a Queensland magistrate visited the islands and appointed a leader (mamoose), whose ability to keep the peace was facilitated by the Meriam's earlier acceptance of the mission. (19) Given this kind of contact, it is not unreasonable to suggest that the Meriam legal and political system already may have undergone significant, though unacknowledged, transformations towards more European-like models by the time of annexation. Justice Brennan quotes from the 1898 Cambridge University Anthropological Expedition reports that "it is not impossible that English ideas, especially of inheritance, are making themselves felt". (20) Furthermore, there can be no reasonable doubts about the continuity between the people who were in occupation of the Murray Islands at the time of annexation and the present day inhabitants.
The Murray Islands situation points to fundamental problems about social and cultural change that will have to be addressed in any cases flowing from the Mabo decision brought by Aborigines. The High Court argued that the privileges and burdens of a particular native title relating to such matters as the acquisition and transfer of rights and interests in land must be determined according to the laws and customs of the people concerned. Yet it also stated that changes in the laws and customs relating to land since the Crown acquired sovereignty did not affect entitlement, "provided that the general nature of the connection between the indigenous people and the land remains". However, native title would be extinguished "if the clan or group, by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connection with the land or on the death of the last of the members of the group or clan". (21) The rights which constitute native title can only be held by the indigenous groups and their descendants, unless there are pre-existing laws allowing for "the alienation of interests in land to strangers". (22) But if it is accepted that the laws and customs can change, what is to prevent their changing so as to allow the alienation of land to outsiders if people so desire? Why do laws or customs relating to alienation have to be "pre-existing", while others can be modified?
It is possible that the Court has not considered matters such as these because it does not realise just how rapidly non-literate tribal societies and cultures can change, even without external contact. In the Milirrpum case both expert witnesses, the anthropologists Ronald Berndt and W.E.H. Stanner, argued for the relative changelessness of Aboriginal life. Berndt claimed that it was "highly likely" that the situation that existed in the mid-1940s when he carried out fieldwork in the Gove Peninsula had "existed for some hundreds of years before then". (23) Yet even then such statements were seen as dubious, and the defence lawyers did draw attention to material in the publications of the witnesses and other researchers which cast doubt on these claims.
Now, two decades later, most anthropologists would reject statements of the kind that Berndt and Stanner made. There is widespread acknowledgement of the malleability of tribal cultures and societies, and a recognition of the ease with which changes can be forgotten or disguised, usually with complete sincerity. This has become so commonplace within the discipline that it is the stuff of introductory lectures to students. Deakin University's TV Open Learning course "Faces of Culture" provides a characteristic example. In the first programme Bill Geddes recalled how, during fieldwork in a Pacific island community in 1972, he had dutifully recorded people's statements about allowable and unallowable behaviour. Ten years later he returned and found people doing some of the things that they had originally said were forbidden. Yet when he drew attention to the changes, people simply denied their earlier statements, maintaining "we have always done this".
There is an unfortunate tendency amongst Westerners to assume that the memories of people in tribal societies are far more reliable than those of people in our own society, and such beliefs gain credibility from accounts of non-literate performers who can recite extremely long epics or songs without faltering. But this does not mean that the content will be repeated without variation from performance to performance, although both Berndt and the defence lawyers in the Milirrpum case seemed to think that it would. (24) Yet as Jack Goody, a Cambridge anthropologist with a longstanding interest in the study of different forms of communication, has cautioned, "many participants think they are hearing or telling the same tale. But they have no text to effect such a comparison". (25) His own research in West Africa showed that people's ability to compare and correct was very limited. He notes that versions of a long sacred poem that he recorded in 1970, omitted "elements which seemed essential" in the version he recorded in 1951. (26)
Researchers have also begun to realise the extent to which indigenous people have incorporated information they have picked up from Europeans and other outsiders into "traditional" stories about the past. As one scholar has recently written, this "happened earlier and more pervasively that many past or present anthropologists would like to acknowledge". (27) The historian David Henige has termed this process "feedback". He has documented numerous examples from around the world, illustrating the multifarious ways in which foreign materials have been absorbed as part of local historical "knowledge", misleading researchers and officials who thought they were hearing pristine sources. He states that with the possible exception of extremely remote parts of the world, "uncontaminated oral tradition simply does not exist any more", and suggests that "it may prove impossible to locate and identify just what elements existed before any assimilation of new materials took place". (28) In a similar vein, the American anthropologist Alan Hanson has noted that fanciful nineteenth- and early twentieth-century European notions about the Maori settlement of New Zealand and a cult dedicated to a supreme god are now "embraced by Maoris as their authentic heritage". (29) He also observed that scholars have become increasingly reluctant to draw attention to the dubious status of these beliefs, in order "to avoid offending Maori sensibilities" regarding highly politicised cultural matters, an observation that is also relevant to the Australian situation. (30)
Of course, similar statements about recent creation and surprising origins can be made about many supposedly ancient folk customs and traditions in Western societies. But the existence of documentary evidence frequently enables historians to demonstrate the fanciful nature of many widespread beliefs about such traditions. For instance, the characteristic apparatus of Scottish Highland culture such as distinctive clan tartans and the kilt, to which Scots and others "ascribe great antiquity, is in fact largely modern. It was developed after, sometimes long after, the Union with England against which it is, in a sense, a protest. ... Indeed the whole concept of a distinct Highland culture is a retrospective invention." (31)
Numerous examples comparable to those referred to above can be found in the literature dealing with Aborigines. Perhaps the most striking are stories of encounters with Captain Cook. As Kenneth Maddock comments, "to all appearances the stories date from Cook's presence in Australia; they seem to be eyewitness accounts brought to us by oral transmission". (32) But the stories tell of Cook visiting places great distances from his actual landings, including the Kimberley region of Western Australia. In one story from the Victoria River district of the Northern Territory, Ned Kelly was the first European to make contact with the Aborigines, and he was followed by Captain Cook, who shot him. Another story has Captain Cook giving orders to Gilruth, an early twentieth-century administrator in the Northern Territory. Maddock asks us to consider our response to a situation where we had no documentary sources to check the accuracy of such accounts: "there would be a temptation to accept them as telling us where Cook landed and what he did. The result would be some totally erroneous pages of history". (33)
If oral history can be invented, so too can apparently momentous events be forgotten. Howard and Frances Morphy note that "several instances are known of the descendants of a massacred group having, within a few years, apparently no recollection of the event." (34) People may deny any memory of well documented movements of groups into new territory, even when such movement has occurred within the lifetime of those involved. Discussing the movement of the Maranunggu across the Daly River in the Northern Territory into what had been Gungarakayn country in the 1920s, Rozanne Lilley states "today, the suggestion that Maranunggu ever lived anywhere else is met by flat denial. In an Orwellian shift, half a century has been transformed into time immemorial". (35) Erich Kolig refers to a similar, though older, state of affairs in the Fitzroy River region of Western Australia, asserting that it provides "irrefutable proof that considerable territorial mobility existed traditionally, and that occupied areas, after a short while, came to be regarded as "traditional lands", leaving no memory of a previous occupation process". (36)
In the Milirrpum case, the defendants quite properly questioned whether expert evidence could provide anything other than speculation about the relation between a given clan and a given piece of land in 1788, when the Crown acquired sovereignty over eastern Australia. Justice Blackburn was not satisfied that the plaintiffs' ancestors in 1788 had the same links to the same areas of land as the plaintiffs were claiming. (37) Yet the defendants had also said that if Justice Blackburn made findings of fact about the clan and land-holding systems existing immediately before the establishment of the Yirrkala Mission in the 1930s, they would accept that the systems had existed in 1788, and continuously since then. (38) But this was an unnecessary concession. A month before the case began, the international journal Current Anthropology published an article on local group composition amongst Australian Aborigines by Joseph Birdsell, followed by a number of responses from anthropologists, including Berndt and Stanner. (39) This forum raised the crucial issue of the effects on Aboriginal social organisation of the dislocations and the drastic demographic and ecological changes occasioned by European contact, and the distortions these introduced into the conditions anthropologists observed, usually many decades later. Although Birdsell did think that some reconstruction was still possible, he was inconsistent on this point. As Les Hiatt noted in his response, "Birdsell ties himself in knots trying to avoid" admitting that his argument required rejecting even the investigations of such anthropologists as T.G.H. Strehlow and Norman Tindale, (40) which he wished to retain. Some of the other commentators were very sceptical about the ability to provide any kind of accurate representation of the past. As one pointed out, "even Tindale's careful genealogical work probably does not allow us to reconstruct the Aboriginal groups of pre-European days, given all we know about the propensity of men to reform their genealogies to fit social expectations". (41)
Other scholars have taken up this matter, although not as often as its importance would warrant. In 1977 James Urry, then with the Australian Institute of Aboriginal Studies, presented a paper at the ANZAAS conference titled "Beyond the Frontier". He considered the changes in technology, patterns of disease and death, and flora and fauna that followed soon after European settlement, arguing that many of them would have occurred even before the frontier reached Aboriginal groups, and nearly always before reliable anthropological research had begun. His conclusion was uncompromising, disparaging anthropologists' claims to be providing accounts of "traditional" Aboriginal cultures and societies. He noted that "many Aboriginal claims to continuity vary over time but are never recognised as such; as long as features of their culture appear to remain consistent and cohesive people never challenge the appeal to continuance. Anthropologists have confused the claims and actions of the people they have studied with their own models of an unchanging world". (42) The following year Henry Reynolds published a paper which also considered the extent to which as-yet-uncontacted Aborigines "beyond the frontier" in Queensland were nevertheless affected by Europeans. Although he does not mention Urry's paper, his conclusion is rather similar: "we must seriously ask if encroaching Europeans were ever able to examine Aboriginal society in its pristine condition, to observe things as they would have been if they themselves had not been there". (43)
Research of the kind I have discussed suggests that, objectively, it is extremely unlikely that any mainland Aboriginal group could meet the requirements for native title as set out by the High Court. It seems as though it will be impossible to establish whether contemporary claimants are the legitimate successors to the people occupying land in 1788 (or 1829 in the case of Western Australia). It will not be reasonable to assume that any changes in occupancy have been in accordance with traditional laws and customs relating to succession or incorporation, for there are a number of documented cases of Aboriginal groups forcibly taking over land. (44) And although some claimants may assert -- and fully believe -- that their ancestors left their land under duress, and did everything practicable to retain their customs and ties to country, it is clear that in a number of cases people abandoned their land voluntarily, thus extinguishing their claim to native title. They often did this in order to gain better access to European goods. Writing in 1958, no less an advocate for the relative "changelessness" of Aboriginal life than Stanner (45) noted that "for every Aboriginal who, so to speak, had Europeans thrust upon him, at least one other had sought them out. ... Nowhere, as far as I am aware, does one encounter Aborigines who want to return to the bush, even if their new circumstances are very miserable. They went because they wanted to, and stay because they want to". (46)
Thus if the High Court is unwilling to protect the settled law in a de jure sense, it may still be "protected" in mainland Australia, at least in a de facto sense. This will be due to the virtual impossibility of providing the kind of evidence that would be necessary for specific cases to succeed, unless, of course, an avenging High Court -- or a lower court which may have to determine certain matters of fact -- is prepared to allow "facts" about the Aboriginal past to be established in a far more cavalier manner than would be allowed in any other case.
None of this is to deny that there may be grounds for giving Aborigines and Torres Strait Islanders rights to land which they occupy at present, or which they may have occupied at some time in the past. But, as Justice Dawson argued, the responsibility should lie with the legislature, not with the courts. (47) Furthermore, individuals or groups who may be granted such land should be given genuine property rights which would enable them to transfer rights and interests in the land to other people should they so desire, either now or in the future. "Native title" and other forms of inalienable tenure are not only paternalistic, locking people forever into an inflexible situation supposedly "for their own good", they also destroy the value of the land. In the misguided attempt to atone for the admitted injustices of the distant past, everyone -- Aborigines as well as other Australians -- will reap the loss.
SOME POLITICAL AND ECONOMIC IMPLICATIONS OF MABO
[E]very lawyer ought to seek an understanding of economics. There we are called on to consider and weigh the ends of legislation, the means of attaining them, and the cost. We learn that for everything, we have to give up something else, and we are taught to set the advantage we gain against the other advantage we lose and to know what we are doing when we elect.
Justice Oliver Wendell Holmes (1897) (48)
Considering its importance, public comment on Mabo has so far been restrained, even muted. The visible amount of reasoned public analysis, outside the law firms and mining companies, has been entirely disproportionate to the potential implications of the decision. Very little so far has been said in the usual popular media which might give the public to understand that this is a decision which might well have considerable political and economic consequences for all Australians.
The majority judgment of the High Court -- the Brennan judgment -- provides fertile ground for criticism, on anthropological, legal and historical grounds. In this comment, however, three aspects in particular will be briefly considered: the role of the High Court itself, the implications for Aboriginal welfare, and the implications for economic activity.
After Mabo, it will no longer be possible to look at the High Court (at least as constituted at present) as we have for most of its ninety-year life: as the senior court of the land, particularly entrusted with the grave task of continually reassessing the constitutional propriety of legislation and with the continuous evolution of an Anglo-Australian tradition of common law. Rather, we have now to take explicit account of the Court's strongly political and legislative tendencies.
In a sense, the Court has been political for a very long time; in the sense, that is, that it has fallen in with long-term broad political tendencies -- not least, the increasing tendency toward centralism (particularly fiscal centralism) in Australia's federal arrangements. Even that process has become more activist over the last decade, as the Court has shown itself more than willing to promote constitutional sanctions -- such as the external affairs power -- for some very centralist initiatives.
None of this should surprise us greatly; and in the very long run it is not the major concern, given that (as in the US) the Court itself will come to reflect changed political currents. There will, of course, be uncomfortable lags, unless some future government is willing to increase the numbers of judges on the High Court bench.
The legislative tendencies of the Court are, on the other hand, more worrying. They offend, of course, against the principle of the separation of powers; but that is a principle whose application in Australia has long been weakened by our having a quasi-Westminster constitution. The fundamental concern is an old one and a very good one: we rightly expect our legislatures to be accountable in some real democratic way. The High Court is not, even in the relatively weak and imperfect sense in which our governments are. We are not given the chance to elect members of the Court, knowing in advance what their policies are. More to the point, they are subject to no discipline from us should they get things wrong. None of the normal sanctions of political accountability applies.
The Mabo case opens up other concerns. To some strong but indeterminate degree, the six Justices in the majority of the Court were concerned to arrive at a decision which gave expression to their concern for the plight (rightly or wrongly perceived and diagnosed) of the Aboriginal population of Australia. This is for the most part implicit in the Brennan judgment; but rather more explicit in the opinions of Deane, Gaudron and Toohey JJ. Here the perils of extreme judicial activism are at their most obvious. The making of law is the essence of the common law; in a historically limited sense the legislative role is necessary and unexceptionable. But what has given the common law its huge historical strength is its deep attachment to just process, rather than to outcomes. No court is any more able than any collectivist government to dictate or to guarantee "fair" outcomes, or outcomes based on unattainable "social justice". Much less so, in fact; the information problems, in particular, are so much more acute. Moreover, the common law relies for much of its acceptability on preserving a delicate balance between the rigours of the law and public opinion. Moving too far ahead of reasonable consensus, particularly in pursuit of doubtful, "socially just" ends, carries with it dangers for the standing of the High Court and for the rule of law.
Moreover, a Parliament which may well be motivated by the same concerns has a number of different means of expressing the same end which can be as precise and particular as possible. The High Court, lacking not least the power of appropriation of moneys, must necessarily use blunter instruments. The particular instrument fashioned by the Mabo case -- native title -- is so blunt as to be potentially lethal.
Unease about the High Court's activism in this respect is not to be found only outside the Court itself. There is some encouragement in Dawson J's remarks in his minority decision:
There may not be a great deal to be proud of in this history of events. But a dispassionate appraisal of what occurred is essential to the determination of the legal consequences, notwithstanding the degree of condemnation which is nowadays apt to accompany any account. The policy which lay behind the legal regime was determined politically and, however insensitive the politics may now seem to have been, a change in view does not of itself mean a change in the law. It requires the implementation of a new policy to do that and that is a matter for government rather than the courts. (49)
Mabo aside, this tendency of the Court is one which Australians should be deeply concerned about, whether or not they agree with the Court's politics. At the very least it is a matter which should feature prominently in the current debate on constitutional reform. That it does not is, no doubt, because the agenda of that debate has until recently been largely determined by those who find the High Court's current political complexion sympathetic. They would do well to contemplate the changing complexion of the U.S. Supreme Court.
The obvious remedies for curing the Court of its legislative tendencies are not very elegant, not least because of the lack of wide public policy debate. The existing parliamentary discipline over the Court (in s.72 of the Constitution) is fairly clumsy and involves its own difficult considerations of executive dominance over the Parliament. Parliamentary hearings into High Court appointments are a possibility; but recent American experience is not encouraging insofar as most Congressmen have shown a frightening inability to distinguish issues of substance from sensationalist trivia. (The Bork and Scalia hearings are instructive here.) Popular recall, a subsidiary version of citizen-initiated referendums, is certainly something that should be contemplated; not necessarily for its explicit use but for the cautionary effect of its existence. Better, and more likely, simply to establish the problem on the public political agenda, to ensure that some genuine public scrutiny be brought to bear on the Court's judicial predispositions.
The other two problems emerging from Mabo are essentially the two sides of the same coin: property rights.
Economists and lawyers do not always hold common views on property. But there is considerable common ground between the two in their starting-points. Economists (to oversimplify somewhat) use a notion of property not unlike the familiar jurisprudential concept of "liberal property" (50) to advance their comprehensive explanation of the importance of property rights: property rights are important to economists because the fullest possible ownership of a thing will tend to promote its most efficient possible use. The economist's definition of fullest possible ownership will not be unrecognisable to a jurist or common lawyer who talks of the "maximum possible interest" in property. What is different is the degree to which economists see property rights as a normative economic process: efficiency will be improved both by strengthening existing property rights in things, and by the creation of such rights in things that may not at present have them. (The present trend of economic arguments about the most efficient means of dealing with a variety of environmental problems -- particularly pollution control and saving endangered species -- offers many examples of the latter.) Economists, incidentally, tend also to be rather clearer and stronger than lawyers on the connexion between property rights and other fundamental rights and freedoms, preserving a refreshing nineteenth-century naïvety in this respect.
The degree to which economics and the law have diverged from their common starting-point, to the detriment of the latter, is a fascinating one; not immediately relevant here. What is relevant is the degree to which the High Court's tendencies, by overlooking such concepts as "maximum possible interest", result in less than satisfactory judgments.
The crux of the Court's decision here is its creation (a novel creation, in Australian common law) of something called "native title". The Court's imperfect legislative function, alluded to above, leaves us struggling to sift through its decision to ascertain precisely what such a title means, legally and economically. Such a title, by contrast, created by a Parliament would necessarily be more precise, even if not absolutely definitive.
The important elements in the decision have been described by Peter Durack in his paper. The essential additional ingredient in our description is given by Brennan J when he observes that,
Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. (51)
An important corollary of this is stated a little later:
Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law. Its alienability is dependent on the laws from which it is derived. (52)
And again:
It follows that a right or interest possessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs ... (53)
While the subtleties and ramifications of this series of dicta will bear a great deal of further scrutiny, the position in essence seems clear: the High Court's description of the rights attaching to real property under native title falls very far short of the rights attaching both to common law title and to the property rights ideal. Alienability, or transmissibility or transferability, is an essential part of genuine ownership; not least because it increases the use of the property. Much of the value of a real asset, for instance, will depend on the degree to which it can be used as financial security.
Imagine a group holding a native title which wished to borrow to establish a business venture: no prudent financial institution would lend without adequate security. Or imagine that such a group wished to finance their venture by selling off a few prime acres; that would be equally impossible. (Seen in this light, in fact, native title begins to resemble entail, the English custom of bequeathing landed property so circumscribed as to be inalienable. There is a long history of principled opposition to entail in the eighteenth and nineteenth centuries, particularly in the U.S., and for good reason.)
Other economic activity may well be similarly circumscribed. Could the native-title holder lease part of the group's land? Could they find the native-title equivalent of a prospecting lease? Could a group which enjoyed, say, the fishing rights inherent in its native title, and whose traditions included allowing other tribes to fish in its waters, license commercial fishery in those waters? Many such fairly obvious questions arise, and lawyers already disagree about the answers. But a narrow reading of the Brennan judgment would seem to indicate that use of the land would be restricted to the variety of economic activities inherent in the group's customs, boosted perhaps by government subsidy or other philanthropy. The consequent irony is that any modem economic use of the land will, apparently, depend on the extinguishment or relinquishing of the native title. (54)
Subsequent decisions may well show that this is a mistaken assessment. The vagueness of the judgments certainly leaves very considerable room for error and uncertainty on the part of those searching them for guidance. And the trend inherent in some of the Canadian precedents which found favour with some of the judges leaves one with the feeling that any future testing of the nature and content of native title could find the Court disposed to take the widest possible view of any matter at issue.
The implications for economic activity -- the other side of the property rights coin -- will already be largely clear from the preceding comments. A cloud of uncertainty has now settled on all economic activity pursued on land held other than by freehold title (or unrestricted Crown lease). In some cases, as for instance, pastoral leases, that cloud may not be more than thin and grey. In other cases, most particularly mining, the cloud looks very black indeed.
Uncertainty is the central issue. Mining companies operate under all the same uncertainties generated by politics and economics which face all firms. The mining industry has, however, its own particular heavier burden. For twenty or twenty-five years now various environmental and Aboriginal factors have added enormously to the general uncertainty.
Whether the outcomes of cases such as Fraser Island, Coronation Hill and Marandoo -- to take a few at random -- are in some sense "right" or "wrong" is an important issue for Australians to decide. But in the present context that is less important than resolving the uncertainty which now afflicts our mining industry. It is in the nature of things that most mining does and will take place in areas where ownership of the land is other than freehold. The status of much of that land is such that it will now be subject to claims for native title. The likelihood of such claims, their lengthy processing, and the subsequent success of some claims, with all the doubt attaching to the content of the title, will make prospecting and mining that much more difficult. Mining, of course, requires capital; and bankers themselves require a high degree of certainty. The paradox here is, of course, that any Aboriginal person or group possessing a full title, one alienable under common law, is as likely as any other person or group to come to mutually beneficial terms with miners and prospectors. So what matters, again, is the incompleteness of the relevant property rights.
Much of the uncertainty -- both of basic principle and of necessary detail -- will have to be clarified by proper legislative means, and the pressures on the State Parliaments in particular will be considerable. It is, however, only realistic to say that on the whole our State Parliaments do not have a particularly good record in dealing with matters of fundamental principle, least of all in such a way as to ensure the greatest common good. Even assuming willingness on the part of the States, the difficulties of coping with the Commonwealth's Racial Discrimination Act may be insuperable. It would seem more likely that the States will be reluctant to assume their responsibilities in this matter and that, barring some kind of legislative force majeure on the part of the Commonwealth, we may have to wait for clarification by way of a series of further judicial decisions.
It is worth asking what good the High Court's decision has achieved in this respect. Some form of justice, perhaps; but not a very useful form of justice. Those who believe that the future welfare of Aboriginal communities depends on economic improvement may well come to believe that in economic terms the decision represents a set-back.
The Mabo decision is full of ironies. Perhaps the most unpleasant is that at a time when hundreds of millions of people in Eastern Europe are discovering that property rights are central to the operation of markets and democracy, and to individual liberty and prosperity, our own legislators, elected and unelected, seem determined to ignore them.
POSTSCRIPT
Since this paper was first written, in September, some slight modification has become necessary. The level of public debate has indeed increased, although the consequent enlightenment has not been significant. The Federal Government has announced that it will fund, probably through the Aboriginal and Torres Strait Islander Commission, a number of actions chosen to test key areas of the Mabo decision; it is not clear at this stage that the Government will consider itself obliged in fairness to meet the legal costs of any private defendants. The uncertainty generated by five or ten years of such a process of trial and error will be damaging in the extreme to all affected parties. At the same time, the Northern Land Council of the Northern Territory has announced that it will take a case to court claiming some 20 per cent of Arnhem Land under native title, including Gove. No politician, State or Federal, from either political party, has apparently yet made a considered statement about the implications of Mabo for Australia's economy, society, or nationhood.
There has, on the other hand, been a flurry of comment about the legislative power of the High Court. This was provoked, however, not by Mabo but by the High Court's decision on the TV political advertising ban. There is some irony in this: first, in that the High Court's discovery of implied rights in the Constitution does at least have some precedent; second, in that its concern for rights, classically defined, did not include property rights in the Mabo decision. But at least now some politicians and voters have had the Court's legislative functions brought squarely to their attention, and the issue, though still marginal, is unlikely to fade entirely from the broader political agenda.
ENDNOTES
1. Stephen CJ, Attorney-General v. Brown, (1847) 1 Legge 312 at p. 316.
2. Cited by Brennan J in Mabo v. The State of Queensland, High Court Registry published Judgements F.C. 92/104, page 10. (Hereafter Mabo.)
3. Mabo, page 47.
4. Mabo, page 171.
5. It is pleasing to note that in the more recent High Court decision in the Political Broadcasts Case, the Court has made another major and controversial decision based on perfectly sound legal reasoning.
6. Mabo, page 100.
7. Milirrpum v. Nabalco Pty Ltd and the Commonwealth of Australia (1971) 17 Federal Law Reports, page 267. (Hereafter Milirrpum.)
8. "The High Court's coup d'etat", The Australian, 2 September 1992.
9. Mabo, page 27.
10. Mabo, page 28.
11. For discussion, from different perspectives, of the problems with the concept of culture see, for example, Roger Sandall, "Aborigines, cattle stations and culture -- a commentary on policies and goals", Mankind, volume 9, 1973, page 5; Roger Keesing, "Theories of culture revisited", Canberra Anthropology, volume 13, number 2, 1990; Joel Kahn, "The 'culture' in multiculturalism", Meanjin, volume 50, number 1, 1991.
12. Cf. Alan Frost, "New South Wales as terra nullius: the British denial of Aboriginal land rights", Historical Studies, volume 19, 1981.
13. Mabo, page 12.
14. Nonie Sharp, "A landmark: the Murray Island case", Arena 94, 1991, page 83; G. McIntyre, " 'Retreat from injustice': Mabo v The State of Queensland", paper presented at Resource Development and Aboriginal Land Rights Conference, Perth, 28 August 1992.
15. Jeremy Beckett, Torres Strait Islanders: Custom and Colonialism, Cambridge University Press, 1987, page 115; Mabo, page 8.
16. Quoted in Sharp, op. cit., page 84.
17. Op. cit., pages 28-29, 114.
18. Mabo, page 3.
19. Beckett, op. cit., pages 39-41, 116-17, 121; Mabo, pages 3-6. Beckett states that two mamooses were appointed; Brennan, following Justice Moynihan, states that there was only one.
20. Mabo, page 10. See also Justice Dawson's comments, pages 152-3.
21. Mabo, page 59.
22. Mabo, page 48. Cf. also Justice Deane and Justice Gaudron's views on these matters, page 101.
23. Milirrpum, page 188.
24. Milirrpum, page 191.
25. The Domestication of the Savage Mind, Cambridge University Press, 1977, page 117.
26. Ibid., page 29.
27. Roger Sanjek, "The ethnographic present", Man, (N.S.), volume 26, 1991, page 614.
28. Oral Historiography, London, Longman, 1982 page 85; "Truths yet unborn? Oral tradition as a casualty of culture contact", Journal of African History, volume 23, 1982, page 411.
29. "The making of the Maori: culture invention and its logic", American Anthropologist, volume 91, 1989, page 893.
30. Ibid., page 895. For the Australian situation, see Ron Brunton, "Can anthropologists be believed?", Review, volume 45, no. 1, 1992.
31. Hugh Trevor-Roper, "The invention of tradition: the Highland tradition of Scotland", in Eric Hobsbawm and Terence Ranger, (eds), The Invention of Tradition, Cambridge University Press, 1983, page 15.
32. "Myth, history and a sense of oneself", in Jeremy Beckett, (ed.), Past and Present: The Construction of Aboriginality, Aboriginal Studies Press, 1988, page 13.
33. Ibid., page 20.
34. "The 'myths' of Ngalakan history: ideology and images of the past in northern Australia", Man (N.S.) volume 19, 1984, page 461; see also Barry Morris, "Making histories/living history", Social Analysis, number 27, 1990, page 91.
35. "Gungarakayn women speak: reproduction and the transformation of tradition", Oceania, volume 60, 1989, page 82.
36. Erich Kolig, The Silent Revolution, Institute for the Study of Human Issues, 1981, page 19.
37. Milirrpum, pages 185-98.
38. Milirrpum, pages 153, 163.
39. "Local group composition among the Australian Aborigines: a critique of the evidence from fieldwork conducted since 1930", Current Anthropology, volume 11, 1970.
40. Ibid., page 135.
41. E. Colson, ibid., page 133; see also Bernard James' comments, pages 135-6.
42. Page 27. A copy of this paper is held in the library of the Australian Institute of Aboriginal and Torres Strait Islander Studies.
43. " 'Before the instant of contact': some evidence from nineteenth-century Queensland", Aboriginal History, volume 2, 1978, page 68.
44. Robert Layton, "Anthropology and the Australian Aboriginal Land Rights Act in northern Australia", in Ralph Grillo and Alan Rew, (eds), Social Anthropology and Development Policy, London, Tavistock, (ASA Monograph 25), 1985, page 164.
45. Cf. Milirrpum, page 185.
46. White Man Got No Dreaming: Essays 1938-1973, ANU Press, 1979, pages 48-49.
47. Mabo, page 171.
48. Cited in C. Veljanovski, The Economics of Law: An Introductory Text, Institute of Economic Affairs, London, 1990, page 12.
49. Mabo, page 138. Emphasis added.
50. Cf A.M. Honore, "Ownership", in A.G. Guest (ed.), Oxford Essays in Jurisprudence, Oxford University Press, Oxford, 1961, pages 107-47.
51. Mabo, page 47.
52. Mabo, page 48.
53. Mabo, page 49.
54. Clarification of the content of native title may perhaps bring about a situation where access could be negotiated with the title-holders, and compensation paid for exploitation, as is the case with, say, farmers. This is far from certain.
