Murdoch University

School of Law

Indigenous Title and Mining in Australia

Lisa M. Strelein

1993

This thesis is presented for the Honours degree of Bachelor of Laws of Murdoch University.

I declare that this is my own account of my research.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Abstract

Secure title for indigenous peoples requires an ability to exert control over access to their land, and the use of their land. These concerns are also central to the mining industry. This thesis analyses the key issues of alienability of title, custodianship of minerals and the right to restrict access to traditional lands. I argue that these rights are elements of indigenous title and are protected by the common law. As a consequence, there are fetters on the Crown's rights to give the mining industry access to traditional lands, where such access would impede the enjoyment of rights, or suspend or extinguish any of the rights under indigenous title. These restrictions also apply where indigenous title is not extinguished which, it is argued, is the case with regard to mining tenements. Finally, I examine whether the Commonwealth's proposed legislation respects the rights identified in this thesis.

Table of Contents

Acknowledgments ............................................................................................... 1 Introduction ........................................................................................................... 2 Common law indigenous title in Australia ................................................... 5 Incidents of title .................................................................................................... 10

Proof of Title ............................................................................................ 10

Restitution for encroachments ............................................................ 20

. .

Extinguishment of title by mining activities .................................... 14

Mining and Aboriginal Land ............................................................................. 25 Alienability .............................................................................................. 27 Custodianship of Minerals ................................................................... 28 Right of Exclusion .................................................................................. 32

Proposals for Resolution ..................................................................................... 35 Identification of Title ............................................................................. 36 Extinguishment by Past Grants ............................................................ 40 Future Dealings ....................................................................................... 44

Control over access ................................................................................. 47 Conclusion ............................................................................................................. 50 Postscript ................................................................................................................ -53 Bibliography ........................................................................................................... 55 List of Cases ............................................................................................................ 63 List of Bills and Statutes ...................................................................................... 65

Custodianship of Minerals ................................................................... 46

Acknowledgments

The preparation of this thesis has been assisted by the invaluable guidance and input of my supervisor, Dr. John Mugambwa who I would like to thank for his patience while I struggled to find my 'thesis'. Also, I thank Dr. Gary Meyers for his support and encouragement, and Hannah McGlade for her insight and friendship. Most importantly, I thank Robert Jansen for his tireless effort, personal sacrifice, intellectual stimulation and emotional support. Without Robert, I would never have had the courage or the emotional resources to rise to the demands of Honours in Law.

Introduction

Within eighteen months of the High Court's historic decision in Eddie Mabo 71. The State of Queensland, division has surrounded the issue of indigenous land title.1 Leading a racist, antagonistic response toward the advancement of secure land title for Aboriginal people, the Court Liberal- National Parties government has introduced legislation to extinguish indigenous title in Western Australia and allocated a million dollars to fighting the implementation of the Mabo doctrine in Western Australia.:! Notwithstanding, the Commonwealth government has introduced legislation which recognises indigenous (native) title and provides for a national response to the identification of titles and title-holders.3 Both of these proposals protect the interests of the mining and exploration industries, thus creating a clear division between the Aboriginal and non-Aboriginal communities with the objective of guaranteeing access to traditional lands for resource e~ploitation.~

The debate over appropriate law reform has quickly moved away from the legal aspects to focus on the political implications. It is accepted that recognition of title under the common law has political ramifications, however, the power of several key interest groups and the ideological agendas of particular governments have resulted in proposals which do not lie within the bounds of the common law. At this juncture, it is imperative that the legislative assemblies return to the High Court decision and to the law of indigenous title to assess the validity of the proposals. To embark upon legislative reform without consideration of the established law is perilous and is likely to be met with a justified onslaught of legal challenges. The common law rights which constitute indigenous title have an important role in the reform process. These rights are not illusory and the

Eddie Mabo and Ors U. The State of Queensland [No. 21 (1992) 175 C.L.R. 1. See for example, Senator Reynolds responding to comments by Hugh Morgan at the Australian National University, Parliamentary Debates, Senate, Hansard, Tuesday 13 October 1992, p. 1724-7. This thesis contains references to 'indigenous title', as the most inclusive term to describe the title recognised by the High Court. Other terminologies may exist, each of which import some legal connotation.

Government of Western Australia, Land (Titles and Traditional Usage) Bill, 1993. This Bill purports to replace common law 'native title' with rights of traditional usage: section 7. Also, The Court Budget at a glance, West Australian, 17 September 1993, p. I; and Unit set to handle Mabo claims, West Australian, 17 September 1993, p. 10.

Commonwealth Government, Native Title Bill, 1993. For Western Australia this is the primary objective: W.A.Land Bill, section 23.

protection afforded by the common law was recognised by the High Court in the Mabo decision.

In this paper, I focus on the elements of indigenous title which directly affect the mining industry. The history of conflict between indigenous inhabitants and the mining industry is well documented.5 Recognition of title in the traditional owners is perceived as a threat to the accessibility of lands to the industry. Accountability for the dispossession of peoples rights has led to threats to take investment off-shore because recognition of indigneous rights affected by mining activity may increase establishment and operating costs.b

I propose that the protection afforded to traditional rights and customs under common law indigenous title extends to custodial rights and the customary right to exclude others from use or occupation of traditional land. This right of exclusion and the rights to control the exploitation of resources, provides a source of control over the use of traditional land resembling a power of veto over use, thus control over access. Control over the use and occupation of traditional land is fundamental to the recognition of indigenous title and it is imperative to the autonomy and self-sufficiency of Aboriginal communities. The rights to use and occupy land will be diminished if there is no control over, or security for, that use and occupation.

Further, I will argue that current proposals to legislate, expressly providing that no controls over access and use of traditional land exists under common law native title, are extinguishing rights recognised at common law. They would therefore be required to show plain and unambiguous intent. Any legislative or executive action seeking to diminish title and extinguish rights would be subject to review under the Racial Discrirninafion Act which may invalidate the legislation, require amendment to the legislation, or impose compensatory restitution.

I will discuss incidences of title and the concomitant rights which directly affect current and future mining tenements, specifically the inalienability of title,. the ownership of sub-surface minerals and the right to exclude others from entry on, or use of, traditional lands. A model of the rights protected by Aboriginal title

See, for example Brian Wyatt, Past and Present Disputes in Western Australia, Paper Presented to the Conference on Resource Development and Aboriginal Land Rights, 28 August 1992, Perth; and Steve Hawke and Michael Gallagher, Noonkanbah: Whose Land, Whose Law, Fremantle Arts Centre Press, Fremantle, 1989.

Schulz, Dennis, After Mabo: Claiming the Kimberley Coast, The Bulletin, August 4, 1992, p.22-4

emerges and as a result, provides an analysis of the extent to which these rights provide Aboriginal communities with control over access to, primarily, their land but, consequently, to minerals.

It is necessary to include a discussion of the powers of the federal and state governments to extinguish, vary or burden Aboriginal title by legislative or executive action. Further, there are limitations on these powers, under common law, the Constitution and paramount commonwealth legislation. The final section draws on these conclusions to assess the validity of current proposals for reform. The Commonwealth proposal is of greatest significance and forms the basis of the Bill which is before parliament this month. In contrast, the Western Australian Premier Mr Richard Court has introduced unilateral state legislation to 'secure titles' that have been under doubt since the Mabo decision. Finally, the paper looks at the efficacy of these proposals to evaluate their feasibility under the current regime of common law indigenous title and how the relationship between Aboriginal communities and mining groups will be moulded by the new regime of legal rights.

Common law indigenous title in Australia

The general precepts of the law regarding indigenous title are yet to be clearly defined in Australian law. There has been but one case to affirm indigenous title as part of Australian common law and that has come only recently. The decision of the High Court of Australia in Eddie Mabo ZI. The State of Queensland did, however, deal with the elements of indigenous title in detail.7 The dubious honour of recognising indigenous title so late in its history has given the Australian courts the benefit of many years of common law development in other countries.8

This section gives a brief review of the concept of indigenous title under common law, as delineated in the High Court decision. From this, the elements of the decision emerge which are significant in the relationship between the mining industry and indigenous title-holders. The remaining sections of the paper identify the areas which will require clarification or further development, and the likely direction of development, in accordance with comparative common law. This preliminary discussion is intended to provide a background to that evaluation, focussing on the primary findings of the High Court, in recognising indigenous title, and the way the majority applied those general principles to the whole of Australia.

Until the decision of the High Court in Mabo v. Queensland the state of the common law in Australia was open to criticism, such as that levelled by Justice Deane in Gerhardy v. Brown that

... the common law of this land has still not reached the stage of retreat from injustice which the Law of Illinois and Virginia had reached in 1823 when Marshall C. J. in Johnson U . McIntosh ... accepted that, subject to the assertion of ultimate dominion ... by the State, the 'original inhabitants' should be recognised as having 'a legal as well as just claim' to retain the occupancy of their traditional lands.9

(1992) 175 C.L.R. 1. The concept of indigenous or 'native title' was first developed by Marshal1 CJ., in the United

(1985) 159 CLR 70 at p. 149. Referring to Johnson v. McIntosh (1823), 8 Wheat. 543, p. 574. States in 1823: Johnson v. McIntosh (1823) 8 Wheat. 543; 21 U.S. 240.

The plaintiffs' argument in Mabo focussed on the consequences of English common law for Aboriginal land rights existing at the time of annexation. The plaintiffs brought various cases and scholarly works before the courts to support the theory that, upon settlement, pre-existing rights survived annexation and continued, protected, by the common law. The basis upon which the land was colonised, whether by settlement, cession or conquest, iss irrelevant to survival of their title to land. The High Court accepted this view holding that the application of the common law did not depend on the historical classification of the occupation but on the fact that indigenous peoples were present on the land at the time it was annexed to the Empire.10 Further, the Murray Islanders were able to show that they continue to enjoy the rights traditionally attached to their land, without recognition by the sovereign and despite interference by colonists, missionaries and visitors.

In contrast, the defendant State of Queensland argued that any pre-existing rights to land of the Meriam people were extinguished by the act of annexation. They argued that upon annexation of the territory, the Crown acquired absolute beneficial title, in possession, of all land to the exclusion of all other rights. Further, the defendants argued that an interest in land could only be acquired through the Crown, by grant, and is subject to the ultimate, or radical title of the sovereign. As a consequence, indigenous inhabitants would have no rights except those granted by the Crown or expressly recognised.

The defendants drew on decisions of the Privy Council and Australian Courts to support of their argument. These decisions were based primarily upon the fiction that the territory was peacefully annexed as 'terra nullius', that is, land belonging to no-one. The authoritative statement of Lord Watson in Cooper v. S t u a r t , in 1889, saw the colony of New South Wales as a 'tract of territory practically unoccupied, without settled inhabitants or settled law, at the time it was peacefully annexed to the British Dorninions'.l' The defendants argument, along these lines, was accepted by Justice Dawson and forms the basis of his dissent.12

*O Toohey J., p. 180,182; Brennan J., (with whom Mason CJ. and McHugh J., agreed) pp. 42,57; Deane and Gaudron JJ., pp. 81-3.

(1889) 14 App. Cas. 286, p. 291. Justice Toohey notes the irony of the idea of peaceful settlement 'in light of what we now know' of the violence of colonisation in Australia, p. 181. l2 Dawson J., pp. 159, 163. In addition to the settlement thesis, the defendants raised the doctrine of tenure as a further obstacle to the recognition of native title. It was asserted that the doctrine of tenure was inconsistent with the recognition of common law native title because the title did not derive from the Crown's ultimate title. This argument was accepted by Dawson J., who agreed that any rights to land would have to be shown to be through executive or legislative recognition.

The first case to challenge the concept of terra nullius was Milirrpum v. Nabalco Pty Ltd.13 Justice Blackburn found evidence of intensive occupation, by indigenous people, and an intricate system of laws. Justice Blackburn questioned the ethnocentric principles which justified the 'more advanced' in dispossessing the 'less advanced', in particular the conception that the earth was 'open to the industry of the human race'. Yet, His Honour felt bound by the legal precedent laid down in Cooper v. Sfuart , despite reservations about the correctness of the facts from which it drew. The decision in Milirrpum was immediately criticised by Canada's highest court,14 and, from this time, the High Court of Australia began to encourage a challenge to the decision.15

In Mabo, the High Court rejected the notion that Australia was 'practically unoccupied' for the purposes of the law, as untenable.16 The Court found support in the International Court of Justice Advisory Opinion on Western Sahara [1975] ICJR l2,17 and also from various North American decisions. During argument, a number of the judges asked the Solicitor-General of Queensland whether indigneous Islanders became trespassers on the island upon annexation, such that, 'at any time from the time of annexation the native population could have been driven into the sea?' The Solicitor-General conceded that it did.18 Justice Brennan commented that if the defendants' argument was to be accepted 'the common law as applied in England, and perhaps in Canada and the United States, was no more than a device to ensure

l3 (1971) 17 F.L.R. 141. l 4 Calder v. Affornq-General of British Columbia [1973] S.C.R. 313; (1973) 34 D.L.R. (3d) 145, p. 218 per Hall J., (Laskin and French JJ., concurring) (Supreme Court of Canada). The 1973 decision overturned the earlier decision of the single judge Calder v. Atforney General of British Columbia [19711 13 D. L. R. (3d) 64 which was relied upon by Justice Blackburn in MiIirrpum. l5 Gerhardy v Brown (1985) 151 C.L.R. 70; Coe v. The Common wealth [1979] A.L.J.R. 403, p. 408, per Gibbs and Askin JJ.; Jacob J., p. 411; Murphy J., p. 412; Northern Land Council v. The Commonwealth fNo. 21 (1987) 61 A.L.J.R. 616. l6 Toohey J., p. 178; also Deane and Gaudron JJ., p, 100; Brennan J., p. 429.

[19751 I.C.J.R. 12. See Brennan J., p. 42: '...international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony denies them the right to occupy their traditional lands'. l8 Comments by Justice Gaudron and Justice Deane, observed by Greg McIntyre, Update: Torres Strait Islander Land Rights Test Case, Aboriginal I Law Bulletin, vol. 2, no. 50, June, 1991, p. 2, also observed by Henry Reynolds, 200 Years of Terra Nullius, Aboriginal Law Bulletin, vol. 2, no. 53 December, 1991, p. 12. See also Brcnnan J., p. 66.

that the indigenous people have nothing'. He suggested that if that were the case it was 'scarcely an appropriate doctrine for a common law'.19

The majority saw indigenous title as a burden or qualification on the Crown' radical title.20 A distinction was drawn between the acquisition of sovereignty over a territory and the acquisition of property rights in the land.21 Justice Brennan concluded that were terra nullius to be rejected then the notion that the Crown acquired beneficial ownership to the exclusion of indigenous rights to traditional land must also be rejected.22 While all land is held by the Crown, under it's ultimate or radical title and in accordance with the doctrine of tenure, the traditional rights to land qualify the radical title of the Crown to the extent required to recognise and protect the title under common law.

The obstacle to resolving the implications of the Mabo decision is the practice of governments, since settlement, of not separating radical and beneficial title.23 As a consequence of Australia being treated as terra nullius, hence without a legal proprietor, the beneficial ownership was assumed to vest in the Crown.24 The High Court did not deny the power of the Crown to extinguish native title.25 Rather, they affirmed that sovereignty implies the power to create and extinguish private rights and interests in land. However, the High Court identified the protection afforded to pre-existing rights of indigenous peoples, under common law and oultined the restrictions on that power.

Thus, the High Court's primary finding was one of general application, with specific reference to the common law applicable to lands which are 'settled', under imperial law, yet have inhabitants with pre-existing rights. The decision is therefore applicable to all of Australia, and is internationally siginficant. The principles discussed by the High Court are directly relevant to any common law country and are particularly relevant to jurisdictions where indigenous peoples were taken to have no proprietary interest in the lands over which they held traditional custodianship.

l9 McIntyre, and Reynolds, ibid. 2o Brennan J., pp. 58; also Deane and Gaudron JJ., pp. 87,109; Toohey J., p. 184. 21 Brennan J., p. 44-5; Toohey J., p. 180. 22 Brennan J., pp. 41,45. 23 The practice was supported by decisions such as Randwick Corporation U . Xutledge (1959) 102 C.L.R. 54; ALtorney General o Brown (1847 1 1 Legge 312. 24 Brennan J., p. 45; Deane and Gaudron JJ., p. 86. 25 Brennan J., p. 63; Dcane and Gaudron JJ., p. 110.

The rejection of the terra nullius lie has implications for indigenous peoples who assert a traditional association with particular lands. The requirements of proof, and content of a title successfully asserted, will be examined in detail in the following discussion. From this, I will address the power of the Crown to extinguish title, the limitations on that power, and the ways in which mining activity has impinged on indigenous title rights in the past. My thesis finds its root in the constituent elements of indigenous title which, I will argue, give Aboriginal communities control over the use and access to their traditional land for resource development.