A JURISPRUDENCE OF DIFFERENCE: THE DENIAL OF FULL … · A JURISPRUDENCE OF DIFFERENCE: THE DENIAL OF FULL RESPECT IN THE AUSTRALIAN LAW OF NATIVE TITLE Stephen Charles Herne BJuris/LLB

A JURISPRUDENCE OF DIFFERENCE: THE DENIAL OF FULL RESPECT IN

THE AUSTRALIAN LAW OF NATIVE TITLE

Stephen Charles Herne

BJuris/LLB (WA), LLM (Syd)

Student number 17211501

University of Western Australia

This thesis is presented for the Degree of Philosophy of the University of Western

Australia

Faculty of Law

2007

Preface

The recognition of native title changed the foundations on which the Australian

law of real property rested. However, the phrase “the promise of Mabo” is not

one much heard any more, rather one talks of a “high water mark”, as if Wik and

Yanner v Eaton belonged to a golden age long passed. While Mabo (1992) affirmed

native title as a legal right of exclusive occupation and possession, it denied any

legal remedy for 200 years of dispossession and extinguishment, and while Wik

(1996) affirmed a diminished native title on land subject to pastoral leases, it has

been interpreted to deny native title any equality of interest with other

proprietary rights.

What now is the state of the Australian law on native title? The sad fact is that

more than ten years after Mabo and after years of “debilitating litigation”,1 no one

has a positive word to say about native title as a coherent legal doctrine, least of

all, the High Court.2 While it is universally conceded that the settlement of native

title issues is best achieved by agreement rather than litigation, there remains a

need to focus on the fundamental legal principles which underlie the recognition

and protection of native title in Australia, in order that informed discussion of

native title can take place and that settlements may have a clear foundation.

The object of this thesis is to examine the way in which Australian law has

conceived of native title as a legal right to property. This is done by reference to

the fundamental legal principles that underlie the recognition of native title and

the protection of proprietary interests in land. What is revealed is a constant

tension between legal principle and pragmatic concerns.

Thesis

The Thesis consists of one Volume containing a Summary of Contents, Table of

Contents, Text, Bibliography, and Table of Cases and Legislation.

Acknowledgments

I wish to acknowledge and thank my supervisor, Professor Richard Bartlett, for

his advice and assistance on matters of approach and content, style and

substance.

Stephen Herne

1 Paul Havemann, Introduction, in Havemann P (ed), Indigenous Peoples’ Rights in Australia,

Canada, and New Zealand (Auckland: Oxford University Press 1999) at 5. 2 For example, Western Australia v Ward (2002) 213 CLR 1 at [560] per McHugh J, at [606] per

Callinan J; Wilson v Anderson (2002) 213 CLR 401 at [68] per Kirby J.

SUMMARY OF CONTENTS

CHAPTER 1 – INTRODUCTION

CHAPTER 2 - COMPARATIVE JURISPRUDENCE: NATIVE TITLE AS A

PROPERTY RIGHT

CHAPTER 3 - FULL RESPECT: THE STANDARD BY WHICH TO ASSESS

THE CONCEPTUALISATION AND EXTINGUISHMENT OF

NATIVE TITLE

CHAPTER 4 - THE DENIAL OF FULL RESPECT IN THE

CONCEPTUALISATION OF NATIVE TITLE

CHAPTER 5 – RADICAL TITLE DOES NOT AFFECT THE CAPACITY OF

NATIVE TITLE HOLDERS TO ASSERT PROPERTY RIGHTS


EXTINGUISHMENT OF NATIVE TITLE

CHAPTER 7 - AN OVERALL ASSESSMENT OF THE DENIAL OF FULL

RESPECT

BIBLIOGRAPHY

TABLE OF CASES AND LEGISLATION

TABLE OF CONTENTS

CHAPTER 1 – INTRODUCTION ..................................................................................1

§1.1 The Problem............................................................................................................1

§1.2 An overview of the Australian law of native title .............................................2

§1.3 The denial of full respect.......................................................................................6

§1.4 Structure of Thesis .................................................................................................8


PROPERTY RIGHT ........................................................................................................11

§2.1 Crown sovereignty, Aboriginal sovereignty and native title ........................12

§2.2 Native title as property .......................................................................................13

(a) Native title as a property right akin to ownership 13

(i) New Zealand: Maori title 13

Maori title as a property right 13

Maori title as a communal right 14

The Wi Parata years 1877-1986: retreat from recognition 14

(ii) Canada: Aboriginal title 15

Aboriginal title as a property right 15

Aboriginal title as a communal right 16

(iii) US: Indian title 17

Indian title as a sovereign right 17

Indian title as a property right 17

Indian title as a communal right 19

Unrecognized Indian title as a permissive occupancy 19

(b) Extinguishment of native title 21

(i) New Zealand: extinguishment of Maori title 21

Extinguishment by clear and plain intention 21

No principle of extinguishment by grant of tenure 22

(ii) Canada extinguishment of Aboriginal title 22

Extinguishment requires clear and plain intention 22

No principle of extinguishment by grant of tenure 23

(iii) USA: extinguishment of Indian title 23

Extinguishment by sovereign act 24

Extinguishment requires clear and plain intention 24

No extinguishment by a grant of tenure 24

(c) Compensation for extinguishment of native title 25

(i) Compensation for extinguishment of Maori title 25

(ii) Compensation for extinguishment of Aboriginal title 26

(iii) Compensation for extinguishment of Indian title 26

§2.3 Aboriginal rights .................................................................................................28

§2.4 Conclusion: native title as ownership and property......................................30

CHAPTER 3 - FULL RESPECT: THE STANDARD BY WHICH TO ASSESS THE

CONCEPTUALISATION AND EXTINGUISHMENT OF NATIVE TITLE .......... 32

§3.1 Acquisition of sovereignty is based on full respect for pre-existing rights . 33

(a) Acquisition of sovereignty by settlement, conquest and cession 33

(b) Pre-existing rights survive the change in sovereignty and are fully

respected 33

(c) Aboriginal communities as objects of Crown sovereignty 35

(d) Native title to be reconciled with Crown sovereignty 36

§3.2 The Continuity Doctrine: the common law principle of full respect for

native title ............................................................................................................. 38

(a) Introduction of English law 38

(i) Acquisition of sovereignty by settlement 39

(ii) USA: The discovery doctrine 39

(iii) Australia: settled colony doctrine applied 40

(b) English law is introduced and Aboriginal law is displaced 42

(c) The Continuity Doctrine: pre-existing rights continue as the common

law right of native title 43

(d) English law, modified to fully respect native title, becomes Australian

law 44

(e) Native title includes rights unknown to the common law: a

proposition of full respect 46

(f) Conclusion 48

§3.3 The principle of equality before the law dictates the recognition of native

title 49

(a) The doctrine of absolute Crown ownership as a denial of the common

law principle of equality before the law 49

(b) Denial of native title as a denial of the right to enjoy property

contrary to the guarantee of equality before the law in the RDA 51

(c) The dictates of substantive equality 53

(i) Formal equality and substantive equality 53

Formal equality 53

Substantive equality 54

Infringing substantive equality by singling out native title 54

Infringing substantive equality by the making of arbitrary

distinctions 55

(ii) Native title as a property right protected by a principle of

substantive equality before the law 55

(iii) Native title as a right enjoyed only by Aboriginal people? 56

(d) Conclusion: equality before the law as a basis for the recognition of

native title 57


CONCEPTUALISATION OF NATIVE TITLE........................................................... 58

§4.1 Native title: the translation of traditional rights into common law rights .. 60

(a) The initial translation: native title as communal ownership 60

(b) The revised translation: native title as a bundle of rights 62

§4.2 The attempt to perceive the existence of traditional rights on the basis of

full respect.............................................................................................................65

(a) Perceiving rights and interests with full respect 65

(b) Aboriginal connection to land: a complex unity 66

(i) Communal and group rights and obligations 68

(ii) The centrality of the community: the locus of exclusive

possession 70

(iii) The right to speak for country as control over access 71

(iv) Traditional use- rights 72

(v) Individual rights and obligations 73

(vi) Co-existence of communal and individual rights and

obligations 74

(c) Conclusion: the Aboriginal connection to land and the language of

full respect 75

§4.3 The intersection between normative systems: the denial of full respect for

native title as a common law right ....................................................................76

(a) The intersection between two normative systems exists to enable a

right to be expressed in terms that are meaningful to the common law

76

(b) The fragmentation of the Aboriginal connection to land: the common

law as a jurisprudence of rights 77

(c) The rhetoric of difference and new rules of right-recognition 78

(i) The intersection is applied to assert the primacy of the common

law perspective 78

(ii) The doctrine of acceptable custom: traditional law as a source of

law that is subordinate to the common law 80

(iii) The skeletal principle: native title as different to common law

rights and therefore subordinate to common law

doctrines/principles 84

(iv) The principle against antithetical rights: native title as

subordinate to the common law 86

(v) Conclusion on the rules of right-recognition 86

(d) The content limitation of the native title right 88

(i) The date of sovereignty as the date of the intersection between

“legal” systems – a frozen rights approach 88

(ii) The frozen rights approach applied 90

Frozen title 90

Frozen use-rights 90

(iii) A conclusion on the frozen rights approach 91

(e) A conclusion on the intersection as a process to deny full respect to

native title 91

§4.4 Native title: the failure to search for meaningful title.....................................93

(a) Espousal of full respect for the Aboriginal perspective in the

expression of the common law right of native title 93

(b) Native title as property 95

(i) Property: a right against the world 95

(ii) Property as legally recognized power: a bundle of control and

use rights 96

(iii) Property as commodity: value and alienation 98

(iv) Conclusion on native title as property 99

(c) Native title as title and ownership 99

(i) Title is ownership 99

(ii) Title as exclusionary rights of control 100

(iii) Native title as a bundle of rights: the denial of meaningful title

102

(iv) Native title as a communal title 103

(v) Native title rights held by individuals 104

(d) Native title as a property right with sui generis content 105

(i) Native title as a sui generis right 105

(ii) Native title as property with a sui generis content 106

(iii) Native title as sui generis property 107

(iv) Australian jurisprudence: native title as sui generis property 110

Native title as a personal right to land 110

Native title as a confusion between common law right and

traditional right 111

(v) Conclusion 112

(e) Native title: alienation and ownership 112

(i) US jurisprudence distinguished: two laws and two

sovereignties 113

(ii) The limitation on alienation: protecting Aboriginal property

rights 115

(iii) The limitation on alienation: controlling colonial settlement 115

(iv) The limitation on alienation: the Crown as the source of title 116

New Zealand jurisprudence 116

Canadian jurisprudence 117

Conclusion 118

(v) The limitation on alienation as explained in Mabo: an

affirmation of native title as property 118

Brennan J: native title as an inalienable property right 118

Deane and Gaudron JJ: the personal right argument and the

sovereignty argument 119

(vi) Conclusion: inalienability as consistent with native title as

ownership 119

§4.5 The denial of full respect: a conclusion........................................................... 121

CHAPTER 5 –RADICAL TITLE DOES NOT AFFECT THE CAPACITY OF

NATIVE TITLE HOLDERS TO ASSERT PROPERTY RIGHTS............................. 123

§5.1 Radical title: distinguishing imperium and dominium.................................... 124

(a) Imperium and dominium 124

(b) Allodial title 126

§5.2 Radical title confers no proprietary interest .................................................. 127

(a) Radical title as dominium: the early jurisprudence 127

(b) Radical title as imperium: Crown ownership not established by the

acquisition of radical title 132

(i) Australian jurisprudence: radical title as a concomitant of

sovereignty 132

(ii) Australian jurisprudence: radical title as a postulate of the

doctrine of tenure 134

View of Brennan J (Radical title expanding to allodial title)

rejected in Wik 135

View of Deane and Gaudron JJ (radical title as proprietary title)

abandoned 136

(iii) New Zealand jurisprudence 137

(iv) Canadian jurisprudence 137

§5.3 The Consequences of radical title as imperium..............................................138

(a) Radical title does not authorise the direct grant of estates 138

(b) Radical title fully respects native title as ownership and property 139

(c) Native title as a burden on radical title and removal of that burden140

§5.4 The parallel approach of US jurisprudence: fee title.....................................142

§5.5 Conclusion: radical title as an affirmation of native title as ownership and

property...............................................................................................................145

CHAPTER 6 - THE DENIAL OF FULL RESPECT IN THE EXTINGUISHMENT

OF NATIVE TITLE.......................................................................................................146

§6.1 The getting of allodial title................................................................................148

(a) The Crown as source of title: a doctrine to justify the subject’s right of

ownership, not the Crown’s right to land 148

(i) The feudal context of title to land 149

(ii) Doctrine of tenure 150

(iii) Doctrine of estates 151

(iv) The fictions of allodial title and presumed Crown grant support

the doctrine of tenure 152

(v) After grant of an estate in fee simple the Crown retains no

proprietary interests in land 153

(vi) Fictional grants of an estate in fee simple 154

Adverse Possession 154

Presumption of lost grant 156

Possessory Title 156

(vii) Conclusion 156

(b) Crown must have interests in land before it can grant interests in land

157

(i) Australian jurisprudence: the principle that the Crown must

have title before grant is affirmed 158

(ii) Udal law: the Crown must have title before grant 159

(iii) New Zealand jurisprudence: Crown must have title before

grant 160

(iv) Canadian jurisprudence: Crown must have title before grant 161

(v) US jurisprudence distinguished 162

(c) Acquisition of allodial title 162

(i) Acquisition of allodial title in England 162

(ii) Acquisition of allodial title in the Australian Colonies 162

(iii) Acquisition of allodial title by exercise of prerogative power 163

(iv) Acquisition of allodial title by purchase 163

(v) Presumed acquisition of allodial title in the absence of other

proprietors 164

(vi) Acquisition of allodial title by legislation 166

(d) Avoiding the ownership debate in Australia 167

(e) The Crown as the source of title in the absence of allodial title 171

§6.2 Because native title is a property right, a clear and plain legislative

intention to extinguish is required .................................................................. 172

(a) Extinguishment of property rights requires a clear and plain intention

173

(b) Extinguishment of native title requires a clear and plain intention 174

§6.3 Extinguishment of native title in the absence of acquisition of allodial title

or a clear and plain extinguishment: the Crown grant of rights to land ... 177

(a) Crown use of land does not extinguish native title 178

(b) The Crown cannot by grant derogate from rights or privileges 180

(i) Stead v Carey: the principle against the invasion of rights by

Crown grant 181

(ii) The honour of the Crown: the king not to be deceived in his

grant 182

(iii) The Crown cannot by grant destroy vested rights 185

(c) Native title as a fragile right 187

(d) Australian jurisprudence: the extinguishment of native title by grant

of an estate in fee simple 192

(e) Comparative jurisprudence: no extinguishment of native title by

grant of an estate in fee simple 196

(i) US jurisprudence 196

Buttz v Northern Pacific Railroad 119 US 55 (1886) 198

United States, Missouri, Kansas & Texas Railway Co v Roberts

152 US 114 (1894) at 117-118 199

(ii) New Zealand jurisprudence 199

Te Teira Te Paea v Te Roera Tareha [1902] AC 56, 65 200

Manu Kapua v Para Haimona [1913] AC 761, 766-767 201

Faulkner v Tauranga District Council [1996] 1 NZLR 357, 365-

366 203

(iii) Privy Council (west African) jurisprudence 204

(iv) Canadian jurisprudence 205

Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107

DLR (3d) 513, 549 205

Delgamuukw BCCA 206

Aboriginal use-rights not extinguished by grant of an estate in

fee simple 208

A conclusion on Canadian jurisprudence 209

(f) Effect of the Racial Discrimination Act on grants of estates in fee

simple 209

(g) Conclusion 211

§6.4 Compensation for extinguishment of native title.........................................213

(a) Presumption to compensation for taking property 213

(b) Presumption to compensation for taking native title 214

(c) Damages for interference with property or native title rights 215

(d) Comparative jurisprudence: a right to compensation for the

extinguishment of native title 217

(i) New Zealand 217

(ii) Canada 217

(iii) US jurisprudence 218

(e) Australian jurisprudence: no presumption to compensation for the

extinguishment of native title 218

(i) Mabo 1: a presumption to compensation affirmed 218

(ii) Mabo 2: a presumption to compensation denied 218

Deane and Gaudron JJ: a presumption to compensation 219

Toohey J: a presumption to compensation 219

Mason CJ, Brennan J, McHugh J, Dawson J: no presumption to

compensation 220

(iii) The extinguishment of native title as the Crown acquisition of a

right 221

(f) Conclusion 223


RESPECT .......................................................................................................................225

§7.1 The recognition of native title: English law is modified to become

Australian law ....................................................................................................226

§7.2 Who owns the land - Aboriginal Communities or the Crown? ..................227

(a) Comparative jurisprudence: the recognition of Aboriginal ownership

and the acquisition of ownership by the Crown 227

(b) Australian jurisprudence: the avoidance of the ownership question

227

§7.3 Full Respect as the standard to determine the recognition and

extinguishment of native title...........................................................................229

§7.4 The jurisprudence of pragmatism: The need to legitimate the Crown

exercise of authority creates new principles of destruction of property

rights230

(a) Extinguishment of native title by mere use 230

(b) Extinguishment of native title by Crown grant 231

§7.5 Native title as a lesser right: The conceptualisation of native title in

accordance with the principles of extinguishment .......................................232

(a) Native title as a right under Australian law 232

(b) The subordination doctrines: native title as a lesser common law right

232

(c) Native title is labelled a fragile right to distinguish it from other

property rights 233

§7.6 Native title as a fragile property right.............................................................234

(a) The translation of pre-existing rights into property rights 234

(b) Native title as a property right with sui generis content 234

(c) The destruction of property rights: more than a mere side wind

required 235

(d) Crown grants and the Crown as source of title 235

(e) An appropriate principle about priorities 236

(f) The presumption of compensation for the loss of native title 236

§7.7 Concluding remarks.......................................................................................... 237

BIBLIOGRAPHY ............................................................................................................... 239

TABLE OF CASES AND LEGISLATION............................................................................. 244

Chapter 1- Introduction

page 1

CHAPTER 1 – INTRODUCTION

_____________________________________________________________

§1.1 The Problem

This thesis is a quest to understand how it came to be that Australian law

recognised native title on the basis of full respect for pre-existing rights to land,

yet developed a doctrine of extinguishment of native title by grant of tenure, and

extinguishment of native title without payment of compensation: propositions

inconsistent with comparative jurisprudence, and fundamental principles of

Australian law with respect to property.

The thesis examines the unique Australian conceptualisation of native title,

which lays part of the foundation for the unique law of extinguishment. It then

examines the bases on which the Australian law of extinguishment of native title

rest. The thesis concludes that, in legal principle, a doctrine of extinguishment of

native title by grant of tenure, and extinguishment of native title without

payment of compensation, do not rest on established legal principle, but on

newly created doctrines based on pragmatic concerns.

Title to land is ownership, and ownership is possession of the right of

exclusionary control over land. This thesis attempts to show more clearly than

previous analyses that the Australian law of extinguishment of native title has

been constructed on a foundation, if not of sand or bare assertion, then one that

has avoided discussion of the foundational questions of property law: who

owned the land prior to sovereignty, and who now owns land over which native

title has not been extinguished? In England, by legal fiction, the Crown had

absolute beneficial ownership of land (allodial title).1 The decision in Mabo

rejected the application of this fiction to the Australian Colonies, and suggested a

change in the foundation of the Australian law of property. In the comparative

jurisprudence this new foundation is acknowledged and embraced. In Australian

jurisprudence, native title is recognized only to the extent it does not disturb the

prior mistaken assumptions of property law.

1 Mabo at 48 per Brennan J: “an absolute beneficial title (an allodial title) to the land”.


page 2

§1.2 An overview of the Australian law of native title

Pre-Mabo Australian case law held that on the assertion of sovereignty over the

Australian colonies, absolute ownership of land vested in the Crown, and

therefore no interests in land not derived from a Crown grant could exist.2 There

could be no doctrine of native title.3 This was so despite recognition prior to the

1850s at the executive level of government that Aboriginal communities asserted

“well defined proprietary rights” over the land.4 A doctrine of Crown ownership

was consistent with the fictions on which the law of real property in England

rested, at the time the Australian colonies were settled.5 But a doctrine of absolute

Crown ownership was not consistent with English law as introduced into

Canada, New Zealand, the American Colonies and the African colonies.

In Mabo v Queensland (1989) 166 CLR 186 [Mabo 1] the High Court considered the

Queensland Coast Islands Declaratory Act 1985 (Qld) which was enacted to

expressly extinguish native title. The Court held that native title rights and

interests in land, if they existed, were rights protected against discriminatory

extinguishment by State legislation after 31 October 1975 under the guarantee of

equality before the law in s.10 of the Racial Discrimination Act 1975 (Cwth) [RDA].

The decision was explained in terms of the RDA protecting the right to enjoy

“property”6. Thus, while an undefined native title was stated to be property,

Mabo 1, resolved neither the actual meaning of “native title” nor the pre-RDA

extinguishment of it.

2 In Attorney-General v Brown (1847) 1 Legge 312 at 316 the Supreme Court of New South Wales

stated: “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 … as his or her property … and may now be

effectually granted to subjects of the Crown”. Similarly Randwick Corporation v Rutledge (1959)

102 CLR 54 at 71 per Windeyer J; New South Wales v Commonwealth (Seas and Submerged Lands

Case) (1975) 135 CLR 337 at 438-439 per Stephen J. Roberts-Wray K, Commonwealth and Colonial

Law (London: Stevens and Sons, 1966) at 631 called this proposition “startling and, indeed,

incredible”. 3 Milirrpum v Nabalco (1971) 17 FLR 141 [Milirrpum]. At 272-273 Blackburn J rejected the claim for

recognition of native title on the following bases: a doctrine of common law native title had no

place in a settled colony except under express statutory provisions; under such doctrine, pre-

existing native interests are not assumed to be recognised unless they are rights of private property;

it was not proved that the claimants possessed rights of property with respect to the land. 4 Governor Gawler, Gawler to Russell, 1 August 1840, CO 13/16 at 56. A significant number of

government documents contain clear acknowledgment of such rights, such as the Letters Patent

establishing South Australia in 1836: Reynolds H, The Law of the Land (Melbourne: Penguin, 1987)

Chapters 3 and 5. 5 Blackstone W, Commentaries on the Laws of England (Facsimile of First Edition published in

1765) (Chicago: U Chicago Press, 1979) [hereafter Blackstone Commentaries], Vol 1 at 51 “the King

is the universal lord and original proprietor of all the lands in his kingdom”, and therefore, at 53,

“all lands were originally granted out by the sovereign, and are therefore holden, either mediately

or immediately, of the Crown.” 6 Mabo 1 at 217-18 per Brennan, Toohey and Gaudron JJ: “The question which s.10 poses in the

present case is whether, under our municipal law, the Miriam people enjoy the human right to own

and inherit property … to a more limited extent than other members of the community… But the

1985 Act destroys the traditional legal rights in and over the Murray Islands possessed by the

Miriam people ... and, by an arbitrary deprivation of that property, limits their enjoyment of the

human right to own and inherit it.”


page 3

In Mabo v Queensland (No 2) (1992) 175 CLR 1 [Mabo] the High Court recognized

and explained the meaning of native title for the first time. The Court held that

Australian law recognised native title as the translation of communal, group and

individual rights and interests with respect to land, held under the traditional

laws and customs of the Aboriginal community, into (common law) legal rights:

The term “native title” conveniently describes the interests and rights of

indigenous inhabitants in land, whether communal group or individual,

possessed under the traditional laws acknowledged by and the traditional

customs observed by the indigenous inhabitants. 7

The appropriate expression of native title was:

the Meriam people are entitled as against the whole world to possession,

occupation, use and enjoyment of the lands of the Murray Islands.8

The Native Title Act 1993 (Cwth) 9 was the Commonwealth Parliament's response

to Mabo. The principal object of the Act was: “to provide for the recognition and

protection of native title.”10 The definition of “native title” in s.223 of the Act

follows the language used by Brennan J in Mabo:

(1) The expression native title or native title rights and interests means

the communal, group or individual rights and interests of Aboriginal

peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws

acknowledged, and the traditional customs observed, by the

Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws

and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of

Australia.

(2) Without limiting subsection (1), rights and interests in that subsection

includes hunting, gathering, or fishing, rights and interests.

As originally enacted, the Native Title Act validated various past acts, including

Crown grants of tenure, which may have been invalid by reason of the existence

of native title, and enabled States and Territories to enact similar validation

7 Mabo at 57 per Brennan J. 8 Mabo at 217 (final order). 9 See Bartlett RH, Native Title in Australia (2ed, Chatswood: LexisNexis, 2004); Perry M and Lloyd

S, Australian Native Title Law (Sydney: Law Book Co, 2003). 10 Native Title Act s.3(a).


page 4

regimes.11 While the Act provided for the extinguishment of native title by

validated past acts, being acts occurring after the commencement of the RDA, the

common law governed any pre-RDA extinguishment of native title. 11A The Wik

Amendments (see below) provided a comprehensive extinguishment regime.

The formulation of native title in the Act is now the starting point for the

consideration of native title.12 It was the understanding of Parliament that the Act

was recognising what the common law had described as native title13 and both

the Act and the common law refer to the same thing when they talk about native

title.14 The Act is to be given a beneficial construction with respect to the

recognition and protection of native title.15

Following Mabo, determinations of native title which do not involve issues of

extinguishment are generally in the following form:

rights of exclusive possession: that is, the right to possess, use, occupy and

enjoy the area to the exclusion of all others.16

11 All have done so: Land Titles of Validation Act 1994 (Vic); Native Title (New South Wales) Act

1994 (NSW); Native Title (Queensland) Act 1993 (Qld); Native Title (South Australia) Act 1994 (SA);

Native Title (Tasmania) Act 1994 (Tas); Native Title Act 1994 (ACT).; Titles (Validation) and Native

Title (Effect of Past Acts) Act 1995 (WA);Validation (Native Title) Act 1994 (NT). 11A The Native Title Act 1993, s 15, specified the extinguishing effect (if any) on native title of “past

acts”, which were defined in s 228(1) to mean acts that would have been valid “if the native title

did not exist”. Accordingly acts prior to the commencement of the RDA were not “past acts”, and

the common law determined their effect on native title. 12 In Western Australia v Ward (2002) 213 CLR 1 at [16], Gleeson CJ, Gaudron, Gummow and

Hayne JJ stated that a claim under the Native Title Act is a claim for rights as defined by s.223: “No

doubt account may be taken of what was decided and what was said in [Mabo] when considering

the meaning and effect of the NTA. This especially is so when it is recognised that paras (a) and (b)

of s 223(1) plainly are based on what was said by Brennan J in Mabo.” 13 Senator Minchin, Parliamentary Debates (Senate Hansard), 2 December 1997 at 10171: “I repeat

that our Act preserves the fact of common law; who holds native title, what it consists of, is entirely

a matter for the courts of Australia. It is a common law right.” 14 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 442 [Yorta] at [76]

per Gleeson CJ, Gummow and Hayne JJ: “The Native Title Act when read as a whole, does not seek

to create some new species of right or interest in relation to land or waters which it then calls native

title. Rather, …those rights and interests… with which the Act deals … are rights and interests

finding their origin in traditional law and custom, not the Act”. It is not possible in this thesis to

explore the proposition that common law and statutory native title are different. 15 Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124 per Lockhart, Lee and Sackville

JJ: the “legislation is clearly remedial in character and thus should be construed beneficially”.

Commonwealth v Yarmirr (2001) 208 CLR 1 [Yarmirr] at [124] per McHugh J (diss): The Act should

“be read as having a legislative purpose of … ameliorating the “national legacy of unutterable

shame”…Where the Act is capable of a construction that would ameliorate any of those injustices

… it should be given that construction”. Pearce DC and Geddes RS, Statutory Interpretation in

Australia (6 ed, Sydney: Butterworths, 2001) [9.2]-[9.4]: beneficial legislation “cannot be construed

in a narrow or pedantic manner” [9.2] and ambiguities are to be resolved in favour of the beneficial

purpose. However, not all the provisions in the Act are remedial, particularly provisions for the

validation of past acts: Re Nyungah People (1996) 132 FCR 54. 16 Gumana v Northern Territory (No 2) [2005] FCA 1425 at [40]. Similarly Mabo at 217 (final order),

Sampi v Western Australia [2005] FCA 777 at [10]; Ngalakan Peoples v Northern Territory (2002)

unreported – reasons set out at [2001] FCA 923 at [143]; Alyawarr, Kaytetye, Warumungu, Wakaya

Native Title Claim Group v Northern Territory [2004] FCA 472 (Town of Hatches Creek), affirmed


page 5

Mabo held by a majority17 that the extinguishment of native title did not give rise

to a right to compensation.

The issue before the High Court in Wik v Queensland (1996) 187 CLR 1 [Wik] was

whether the pastoral leases in question granted “exclusive possession” over land,

and if so, “did the grant of the pastoral lease necessarily extinguish all incidents

of Aboriginal title”?18 The Wik majority held that native title rights were

extinguished by reference to an inconsistency of rights test.19 Wik implied that

native title was to be seen as a bundle of rights to use and control land, rather

than a title to land. The Wik Amendments,20 the Commonwealth Parliament's

response to Wik, provided that certain “previous exclusive possession acts”,

which included acts occurring before the commencement of the RDA, completely

extinguished native title, and other validated acts extinguished native title rights

by reference to the inconsistency of rights test. The Wik Amendments delivered

“bucket loads”21 of extinguishment, providing for the extinguishment of native

title up to 23 December 1996 (the date of the Wik decision), but did not change the

common law concept of native title.22

The proposition that, by reference to the inconsistency of rights test, the grant of

an estate in fee simple wholly extinguished native title was confirmed in Fejo v

Northern Territory (1998) 195 CLR 96 [Fejo]. In Western Australia v Ward (2002) 213

CLR 1 [Ward], the High Court considered the effect of various statutory leases

granted under general Crown lands legislation on native title, and confirmed that

native title was to be conceptualised as a “bundle of rights”23 to land, of which

the right to exclusive possession may be one, and that there was a doctrine of

partial extinguishment of native title, by which the grant of rights under these

leases extinguished native title rights to the extent of the inconsistency.

Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005]

FCAFC 135 at [79]-[80]; Griffiths v Northern Territory [2007] FCAFC 178 at [6]. 17 Mason CJ and McHugh J (Brennan J and Dawson J agreeing); Deane and Gaudron JJ and Toohey

J contra. 18 Wik at 261. 19 Wik postscript per Toohey J at 133. 20 The Native Title Amendment Act 1998 (Cwth) substituted a new s.4: “This Act also confirms that

many acts done before the High Court's judgment, that were either valid, or have been validated

under the past act or intermediate period act provisions, will have extinguished native title. If the

acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the

acts are previous non-exclusive possession acts (see section 23F), the extinguishment is to the extent

of any inconsistency.” 21 Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1997

(Canberra: HREOC 1997) at 36; Bartlett RH, “Is Equality Too Hard for Australia?” (1997) 20

UNSWLJ 492. 22 Native Title Act Case at 452 per Mason CJ, Brennan, Dean, Toohey, Gaudron and McHugh JJ:

“The common law concept of ‘native title’ is incorporated into the definition contained in s.223(1)”. 23 Ward at [76] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.


page 6

§1.3 The denial of full respect

As a legal concept, “property” is defined as the legal relationship between people

with respect to things,24 and the word property will be used in this sense. The law

treats the word “right” as having a particular meaning, and the generally

accepted analysis of Hohfeld’s eight jural conceptions – rights, duties,

privileges/liberties, no-rights, powers, liabilities, immunities, and disabilities,25 is

adopted here.

The first basis on which Australian law recognises the right of native title,

consistently with comparative jurisprudence, is one of full respect for pre-

existing rights to land. As a common law right, native title enjoys the full and

active protection of the common law. The second basis on which Australian law

recognises native title is that the common law principle of equality before the law

dictates that there be a doctrine of native title, respecting pre-existing property

rights.

Comparative jurisprudence treats native title as a property right akin to

ownership, and accords full respect to native title as property, holding that it can

be extinguished only by a clear and plain act presumed to be on the basis of the

payment of just compensation.

The unique Australian conceptualisation of native title, as the translation of

communal, group and individual rights and interests under traditional laws and

customs into a bundle of common law rights, is one that has undermined full

respect for native title, seeing native title as a bundle of undifferentiated rights,

rather than a true title to land. In recognizing native title rights as common law

rights, Australian jurisprudence has conceptualised them as fragile and lesser,

when compared to other common law rights. These two strands of reasoning lay

a basis for the unique Australian law of extinguishment of native title.

The bundle of rights approach implies that Aboriginal communities never really

owned the land. They possessed merely an undifferentiated bundle of

individually extinguishable rights, and the Crown did not, therefore, have to turn

its mind to acquiring ownership of the land before it proceeded to grant interests

in that land. Even so, these native title rights were property rights, protected by

common law or statutory remedies against infringement.

The Australian law of extinguishment of native title has been supported by a

confusion concerning the way the doctrine of tenure applies to protect interests

in land. The law fails to explain how the Crown came to acquire a better title to

land than that possessed by native title holders, or how the Crown was able to

grant interests in land against native title holders.

24 Lawson FH and Rudden B, The Law of Property (2ed) (Oxford: OUP 1982) at 1. 25 Hohfeld WN, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23

Yale LJ 16; Hohfeld WN, “Fundamental Legal Conceptions as Applied in Judicial Reasoning”

(1917) 26 Yale LJ 710.


page 7

The legal reasoning which, in Australia, denies native title the full respect

accorded it in the comparative jurisprudence, and denies native title the full

respect accorded other property rights in Australian jurisprudence, departs from

legal principles with respect to the recognition and protection of property.

Australian jurisprudence focuses on a difference between native title and other

property to deny equality of treatment to native title property rights. The

Australian law of native title bases itself on the need, not merely to validate the

grant of interests in land, but validate them in a way that deprives native title of

its meaning as a form of title, property or indeed right. Pragmatism has been

manifested in the creation of new legal doctrines not derived from existing legal

principle.


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§1.4 Structure of Thesis

The pre-existing indigenous right to land, as translated into a right under

domestic law, is called native title in Australia, Aboriginal title in Canada, Indian

title in the USA, and Maori title or native title in New Zealand. This right will be

called “native title” when not confined to the jurisprudence of one jurisdiction.

Chapter 2 - Comparative jurisprudence: native title as a property right

Chapter 2 examines the comparative jurisprudence of native title. That

jurisprudence shows that native title is recognised as a communal property right

to land, akin to ownership. It is a true form of title. As native title is a legal right

and a species of property, the comparative jurisprudence holds that native title

can be extinguished only by clear and plain executive or legislative act presumed

to be on the payment of compensation. Accordingly, native title cannot be

extinguished by the grant an estate in fee simple under general legislation.

What Chapter 3 - Full respect: The standard by which to assess the

conceptualisation and extinguishment of native title

Chapter 3 argues that full respect is the standard by which to assess how

Australian law recognises native title as a property right.

In stating why the common law recognises native title, Australian and

comparative jurisprudence hold that native title is recognised because the

acquisition of Crown sovereignty was on the basis that pre-existing rights to land

would be fully respected. Further the introduction of English law also rests on

the basis that common law and legislation fully respect native title as a property

right.

In Australian jurisprudence the recognition of native title also rests on two

express propositions with respect to equality before the law. Firstly, Mabo held

that the doctrine of absolute Crown ownership of land was inconsistent with the

common law principle of equality before the law, and did not form part of the

law of Australia. Therefore, by reason of a common law doctrine of equality, the

Crown in the Australian colonies did not acquire absolute ownership of the land

by the assertion of sovereignty. Secondly, Mabo 1 held that to extinguish native

title was to extinguish a property right, a right protected by the guarantee of

equality before the law under the RDA.

Chapter 4 - The denial of full respect in the conceptualisation of native title

Chapter 4 argues that full respect for native title as a form of title and right, has

been denied in the way Australian jurisprudence has conceptualised native title.

Full respect for rights and interests under traditional laws and customs dictates

the recognition by Australian law of all such rights and interests that can be

meaningfully expressed in common law terms. Australian jurisprudence adopts


page 9

the language of full respect in the perception of the traditional rights that are

recognized as native title. However, Australian jurisprudence holds that native

title rights must exist in an “intersection” between the traditional normative

system and the Australian legal system, and must be acceptable to Australian

law by reason of various principles limiting the recognition of rights. The

language of difference has been used in the process of translating traditional

rights into native title in a way that not only affirms the primacy of the common

law, but contextualises native title as a lesser or fragile form of common law

right.

As a communal right of exclusionary control, native title enters Australian law as

a true form of ownership and title. The conceptual tool of a bundle of rights has

fragmented these notions of ownership or title. Even so, native title is a series of

property rights to land. However, the bundle of rights conception, as applied in

Australian jurisprudence, has compromised native title as a form of ownership

and title.

Chapter 5 – Radical title does not affect the capacity of native title holders to

assert property rights

Chapter 5 distinguishes between “radical title” and conceptions of property

and ownership, and explains what it means to say that native title is a

“burden” on the “radical title of the Crown”. There is a confusion about the

relationship between radical title and allodial title, and between radical title

and native title, implying that radical title is a proprietary interest in land

competing with or limiting native title. When properly understood, radical

title is consistent with full respect for native title as ownership and property.

Chapter 6 - The denial of full respect in the extinguishment of native title

How then has the Crown acquired ownership or indeed any proprietary interests

in land, or extinguished native title? As a property right, native title is protected

by appropriate legal remedies against physical interference, yet when it comes to

interference by executive or legislative act, native title is treated differently from

all other property rights. Native title can be extinguished by a mere “side-wind”

and without the payment of compensation. Property rights can be taken away

only without compensation if a clear and plain legislative intention to this effect

is manifested, and no such intention has been manifested in Australian

legislation.

Chapter 6 argues that this difference of treatment is explained by labelling native

title a “fragile” right. However, the description of fragile is not the conclusion of

a process of reasoning, but the a priori starting point for reasoning in which this

fragile right cannot compete on an equal footing with other non-native title

proprietary rights. The weaker native title right cannot compete with the stronger

rights contained in the grant of an estate in fee simple. However, grants under

Crown lands legislation have created rights in land already owned by persons

other than the Crown. In justifying how rights under Crown grant prevail over


page 10

inconsistent native title rights, or how native title can be extinguished in a way

that other property rights cannot, Australian jurisprudence, has hedged the

protection of native title by pragmatic concerns which cannot be supported by

legal principle. Australian jurisprudence has also created a new doctrine by bare

assertion: the presumption of a right to compensation for the taking of property

rights does not apply to native title.

Chapter 7 - An overall assessment of the denial of full respect

A jurisprudence of rights recognition focuses on how native title is recognized

and protected as a common law right. A jurisprudence of difference, based on

according priority to interests under Crown grants, looks at difference, and

regards difference as an indication of lesser. Thus, Australian jurisprudence,

starts with the question: how has the Crown grant affected native title, not how

has the common law right of native title burdened the Crown’s ability to grant

interests in land? The common law as a jurisprudence of rights recognition and

rights protection has been replaced by a jurisprudence of difference.


page 11


PROPERTY RIGHT

_____________________________________________________________

The English law introduced into British settler colonies, comparable to Australia,

namely Canada, New Zealand and the American Colonies/USA, recognised that

indigenous communities had a legal right to their land. English law was

modified to the extent necessary to recognize that right, as native title, even

though native title may not have existed in the law of England.1

§2.1 Crown sovereignty, Aboriginal sovereignty and native title

In the non-US comparative jurisprudence, English law, from the moment of its

introduction, displaced Aboriginal law as a source of law and recognized native

title as a common law property right. In US jurisprudence both paramount

Crown sovereignty and continuing limited Indian sovereignty were recognized

over the same land. As well, Indian title was recognized as a right under

domestic law.

§2.2 Native title as property

Comparative jurisprudence recognises native title as a communal property right

to land, a form of title akin to ownership. It follows that the principles of the

common law with respect to the recognition and protection of property apply to

native title: native title cannot be taken away otherwise than by a clear and plain

legislative act, or legislatively authorised executive act, and property is presumed

to be taken on the basis of payment of just compensation. The normal method of

acquiring property rights, acquisition by purchase or legislative acquisition

without consent, were applied to native title. The Crown or government was

then able to grant possessory interests in land out of its own proprietary

interests.

§2.3 Aboriginal rights

Comparative jurisprudence recognizes a series of Aboriginal rights, in addition

to native title. These rights include traditional land-use rights where no right of

ownership, exclusive possession or control is claimed. The separation of

Aboriginal title and Aboriginal rights highlights the conception of Aboriginal

title as a true form of title to land.

1 It is impossible to determine whether the law of England immediately after the Norman conquest

contained in fact or embryo, a doctrine that pre-existing rights to land were to be respected.

Historical opinion is that the great majority of English landholders were left in undisturbed

possession of their land: §6.1(c) Acquisition of allodial title .


page 12

§2.1 Crown sovereignty, Aboriginal sovereignty and native title

The idea of sovereignty has several meanings, but in the legal context,

sovereignty is the possession of ultimate political and legal authority within the

limits of the nation.2 The proposition that the imperial acquisition of sovereignty

over colonial lands, whether by settlement, treaty of cession or act of conquest,

did not extinguish native title, is universally recognised,3 because sovereign

rights to land and property rights to land are distinct. Territory is subject to a

right of sovereignty (imperium), while land is subject to a right of property

(dominium).4 Not only is extinguishment of native title not dictated by the

acquisition of sovereignty, but Chapter 3 argues that the very basis on which the

assertion of sovereignty over settled colonies took place was that of full respect

for pre-existing rights to land, as true legal rights under introduced English law.

Continuing Aboriginal sovereignty is not recognised in New Zealand, Canadian5

or Australian6 jurisprudence. While the Maori were recognised as sovereign,7 the

Treaty of Waitangi,8 signed by many but not all Maori “tribes”,9 ceded Maori

sovereignty to the British Crown.10 US jurisprudence is unique in recognizing a

continuing Indian sovereignty.11

2 Mabo at 36 per Brennan J: “sovereignty dictates that a state has exclusive sovereignty over all

persons, citizens or aliens, and all property, real and personal, within its own territory”. Ward at

[91] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “The assertion of sovereignty marked the

imposition of a new source of authority over the land” 3 §3.1 Acquisition of sovereignty is based on full respect for pre-existing rights. 4 Salmond J, Jurisprudence (7 ed, London: Stevens and Haynes, 1924) at 554 (see text accompanying

Chapter 5 footnote 6) cited in Mabo at 44 per Brennan J. 5 R v Sparrow [1990] 1 SCR 1075 [Sparrow] at 1103: “It is worth recalling that while British policy

toward the native population was based on respect for their right to occupy their traditional

lands…there was from the outset never any doubt that sovereignty and legislative power …vest in

the Crown.” 6 Mabo at 37-38 and 61 per Brennan J; Walker v New South Wales (1994) 182 CLR 45 at 48-50. 7 The “Instructions …to Captain Hobson…as Lieutenant Governor of New Zealand” of 14 August

1839 (CO 209/4), extracted in McIntyre WD and Gardner WJ (eds), Speeches and Documents on

New Zealand History (Oxford: OUP, 1971) at 281: “I have already stated that we acknowledge New

Zealand as a Sovereign and independant (sic) State …Her Majesty's Gov[ernmen]t have resolved to

authorise you to treat with the Aborigines of New Zealand for the recognition of Her Majesty's

Sovereign authority over the whole or any parts of those Islands which they may be willing to

place under Her Majesty's Dominion.” 8 The treaty is scheduled to the Treaty of Waitangi Act 1975 (NZ). 9 In the early 1800s there existed some 50 iwi in New Zealand, of which 36 signed the Treaty. The

iwi was the largest political unit in Maori society, with a common leadership: Walker R, “Maori

Sovereignty, Colonial and Post-colonial Discourses”, in Havemann P (ed), Indigenous Peoples’

Rights in Australia, Canada, and New Zealand (Auckland Oxford University Press 1999) at 108-123. 10 New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 at 670, 671 and 690. There are

key differences between the Maori and English versions of the Treaty. The English text states that

the Maori Chiefs cede “sovereignty”, while under the Maori text (cited in New Zealand Maori

Council v Attorney General [1994] 1 NZLR 513 (PC)) states only “the government” was granted. 11 §2.2(a) (iii) US: Indian title.


page 13

§2.2 Native title as property

When colonial settlers arrived in the new world, the assumption that the people

in peaceful occupation of the land were its owners would have been so natural as

to need no justification. The contrary had to be established.12 Australian, New

Zealand Canadian and US jurisprudence hold that in order to be a legal right

against the whole world, native title need not be recognized by executive or

legislative act.

(a) Native title as a property right akin to ownership

According to Blackstone, citing Coke, under English law: “A title … is the means

whereby the owner of lands hath the just possession of his property.”13

Ownership exists when a person holds a property right, or bundle of property

rights, against the whole world, sufficient to be called “ownership”; the

paradigm right being the right to exclude.14 The common law tends not to

distinguish between ownership/property as a “concept” and ownership/property

as a “label”.15

(i) New Zealand: Maori title

Article 2 of the Treaty of Waitangi 1840 recognised a Maori right to enjoy

“exclusive and undisturbed possession of their Lands.” 16

Maori title as a property right

New Zealand law recognises a Maori title of “possession and occupation”17

established under Maori “customs and usages”.18 Maori title is a right against the

12 The Spanish jurist de Victoria, Nys E (ed), F de Victoria, De Indis et de Jure Belli Relectiones

[1557] (Washington, DC: Carnegie Institute, 1917): “we have the fact that the people in question

were in peaceable possession of their goods, both publicly and privately. Therefore, unless the

contrary is shown, they must be treated as owners and not be disturbed in their possession unless

cause be shown.” (at 120) However good cause to the contrary can be shown from various reasons,

the first of which is: “First: Irrational creatures …can not have a right. ..The proof of this

assumption is that he who kept off a wolf or a lion from its prey …would not do it a wrong…The

proof of the assumption is that they may be killed with impunity” (at 126). 13 Blackstone W, Commentaries on the Laws of England (Facsimile of First Edition published in

1765) (Chicago: U Chicago Press, 1979) [hereafter Blackstone Commentaries], Vol 1, at 195: “A title

is thus defined by Sir Edward Coke, titulus est justa causa possidendi id quod nostrum est; or, it is

the means whereby the owner of lands has the just possession of his property.” Blackstone is using

“property” to designate the thing over which property rights exist. 14 §4.4 (c) (iv) The right to exclude: the primary right in the bundle. 15 Honoré A, “Ownership” in Honoré A, Making Laws Bind (Oxford: Clarendon Press, 1987) 161 at

161. 16 The English version of Article 2 states: “Her Majesty the Queen of England confirms and

guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals

thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries

and other properties”. 17 In Nireaha Tamaki v Baker [1901] AC 561 (PC) [Nireaha Tamaki] at 578: “the “rightful possession

and occupation of the natives” until extinguished in accordance with the law.”


page 14

whole world.19 Maori title “is a residual category of ownership not dependent

upon title derived from the Crown”,20 and a form of title out of which common

law leases could be granted to European settlers.21

Maori title as a communal right

Maori lands are held in common by all members of the group:

Mäori …customary tenure… is generally agreed to be a “collective” one, in

that the land belonged to all members of a defined group (usually a hapü).

No individual interests in the land were discernible, though the group

might allocate particular functions and productive activities to individuals

as their right.22

The Wi Parata years 1877-1986: retreat from recognition

A restrictive approach to Maori title began with the decision of Wi Parata v Bishop

of Wellington [Wi Parata] which denied legal effect to Maori rights unless

recognised by statute.23 The restrictive approach was rejected by the Privy

Council in appeals from New Zealand, but continued to be the law recognised by

New Zealand courts until overruled in 1986.24

18 Nireaha Tamaki, 577. Similarly Re The Lundon and Whitaker Claims Act 1871 (1872) 2 NZCA 41

at 49: “established Native custom.” 19 Nireaha Tamaki at 578 “[I]f the appellant can succeed in proving that he and the members of his

tribe are in possession and occupation of the lands in dispute under a native title … he can

maintain this action to restrain an unauthorised invasion of his title.” 20 Attorney-General v Ngati Apa [2003] 3 NZLR 643 [Ngati Apa] at [40] per Elias CJ: “Maori

customary property is a residual category of ownership not dependent upon title derived from the

Crown.” and at [41]: “customary land is property recognised by New Zealand law which is not

owned by the Crown.” At [37]: “From the beginning of Crown colony government, it was accepted

that the entire country was owned by Maori according to their customs and that until sold land

continued to belong to them” At [38]: “The land became subject to the disposing power of the

Crown by Crown grant only once customary ownership had been lawfully extinguished”. 21 Waitangi Tribunal, Ngai Tahu Land Report (Wellington: GP Pubs, 1991) 3 vols, notes that until

the Native Land Purchasing Ordinance 1846 (NZ) made it illegal to lease Maori land, the practice

had been common on Ngai Tahu land. As a result of the Ordinance “Ngai Tahu were prevented

from gaining an income by leasing their land to private individuals while retaining title to such

lands” [5.8.1]. After 1846 Ngai Tahu could only sell their land to the Crown. Similar direct leases

existed in the Wairarapa and Hawke's Bay: Waitangi Tribunal, Mohaka River Report (Wellington:

GP Pubs, 1992) at [3.2]. In the Waitangi Tribunal (Rangahaua Whanui District Reports Series),

District 11b: Hawke’s Bay by D Cowie (Wellington: GP Pubs, 1996) at [6.5.3] noted that even after

the Ordinance “informal and ‘illegal’ leases [were] entered into by European entrepreneurs.” 22 Law Commission, Study Paper 9: Mäori Custom and Values in New Zealand Law (Wellington:

Law Commission, 2001) at [264]. 23 In Wi Parata v The Bishop of Wellington [1877] 3 NZ Jur 72 ruled that the Maori rights confirmed

in the Treaty were unenforceable against the Crown. Similarly Re Ninety Mile Beach [1963] NZLR

461 at 468: the Crown can “disregard the Native title to any lands in New Zealand”. 24 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680. Wi Parata is now “discredited”: Ngati

Apa at [13] per Elias CJ. In McRitchie v Taranaki Fish and Game Council [1999] 2 NZLR 139 (CA) at

158, Thomas J stated: Te Weehi “reversed the restrictive approach of earlier Courts which the

judiciary now bear with ignominy and discomfiture.”


page 15

(ii) Canada: Aboriginal title

Aboriginal title as a property right

Following the cession of North American territory from France under the Treaty

of Paris in 1763,25 the Royal Proclamation of 176326 re-organised the Crown’s

administration of the American Colonies and stated: “the several Nations or

Tribes of Indians ... should not be molested or disturbed in the possession of such

parts of our Dominions and Territories as, not having been ceded to, or purchased

by us, are reserved to them” (emphasis added).27 Notwithstanding that the passage

in italics could be interpreted as recognizing Aboriginal ownership of the land,

and notwithstanding a history of acquisition of land by treaty,28 Canadian

jurisprudence, culminating in the Privy Council’s decision in St Catherine's, paid

primary attention to the phrase “are reserved to them” to interpret the

Proclamation as a grant of Aboriginal title and waiver of any right to deal with

the land until Aboriginal title was extinguished.29 It was held that the imperial

Crown acquired both sovereignty and property by cession from France, and

Indian title “was a personal and usufructuary right, dependent upon the good

will of the Sovereign”,30 a significant departure from the US and New Zealand

jurisprudence of the time.31

The implied grant approach was rejected in Calder32 and Guerin33 where Dickson J

described “aboriginal title as a legal right derived from the Indians’ historic

25 Treaty of Paris, 10 February 1763, concluding the Franco-British conflicts of the Seven Years' War

(“French and Indian War” in North America) by which all of French North America east of the

Mississippi River (including Canada) was ceded to Britain. 26 The Royal Proclamation of 7 October 1763, RSC 1985, App II, No 1, organized the territories

acquired under the Treaty, and reserved two types of land to the Indians: land outside colonial

territorial limits and settlements authorized by the Crown inside such limits. 27 The Proclamation reads: “And whereas it is just and reasonable, .. that the several Nations or

Tribes of Indians … who live under our Protection, should not be molested or disturbed in the

Possession of such Parts of Our Dominions and Territories as, not having been ceded to or

purchased by Us, are reserved to them, or any of them, as their Hunting Grounds … no Governor

[shall] presume, to … pass Patents for any Lands .. which, not having been ceded to or purchased

by Us as aforesaid, are reserved to the said Indians, or any of them.” The actual area covered by the

Proclamation is a matter of dispute: Slattery B, “The Land Rights of Indigenous Canadian Peoples”

(doctoral dissertation) reprinted (Saskatoon: U Saskatchewan Native Law Centre, 1979) [Slattery

Thesis] 175-190. 28 A series of land surrender agreements from 1725 on between First Nations and the Crown

eventually covered much of Canada: see footnote 93. 29 St Catherine's Milling and Lumber Co v Queen (1887) 13 SCR 577 at 599-600; Church v Fenton

(1878) 28 Upper Canada Common Pleas 384 at 399: “Her Majesty was seised of the lands therein

mentioned in right of her Crown, but by a usage which never had been departed from the Crown

had imposed upon itself this restriction, that it never would exercise its right to sell or lease those

lands, or any part of them, until released or surrendered by the Indians, for the purpose thereby of

extinguishing what was called the Indian title.”. 30 St Catherine's Milling and Lumber Co v Queen (1888) 14 AC 46 at 54-55. 31 The Marshall trilogy (footnote 48) and Symonds (footnote 87) were cited to the Privy Council. 32 Calder v Attorney-General of British Columbia [1973] SCR 313, where six of the seven judges

ruled on the issue: 322-23 per Judson J for majority, 390 per Hall J (diss) for minority. 33 Guerin v R [1984] 2 SCR 335.


page 16

occupation and possession of their tribal lands”.34 Traditional laws and customs

may be relevant to establish “proof of occupancy”35 but Aboriginal title may be

established by proof of factual occupancy alone. When the implied grant

approach was rejected, references to Aboriginal title as a personal right were re-

interpreted as references to Aboriginal title being alienable only to the Crown.36

Aboriginal title became first a “beneficial”37 interest in land, then a legal right38

and finally “a sui generis proprietary interest”39 in land.

Aboriginal title “is a right to the land itself”,40 a “right of exclusive use and

occupation”.41 While Canadian jurisprudence has described Aboriginal title as

“ownership”,42 it distinguishes Aboriginal title from “fee simple ownership”.43

Aboriginal title is a right to use land for any purpose and includes ownership of

minerals,44 and thus it has an “inescapably economic aspect”.45 Aboriginal title is

a right against the whole world.46

Aboriginal title as a communal right

The community is central to a conception of Aboriginal title:

34 Guerin at 382 per Dickson J. Similarly Delgamuukw v British Columbia [1997] 3 SCR 1010

[Delgamuukw] at [143] per Lamer CJ : “In order to make out a claim for Aboriginal title, the

Aboriginal group asserting title must satisfy the following criteria: (i) the land must have been

occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-

sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii)

at sovereignty, that occupation must have been exclusive.” 35 Delgamuukw at [112] per Lamer CJ: “the source of Aboriginal title appears to be grounded both

in the common law and in the Aboriginal perspective on land; the latter includes, but is not limited

to, their systems of law. It follows that both should be taken into account in establishing the proof

of occupancy.” 36 See Delgamuukw at [113]: footnote 39. 37 Guerin at 376 per Dickson J: “It appears to me that there is no real conflict between the cases

which characterise Indian title as a beneficial interest of some sort, and those which characterise it a

personal usufructuary right.” 38 Guerin at 382 per Dickson J. 39 R v Van der Peet [1996] 2 SCR 507 at [115] per L'Heureux-Dubé J (diss): a “sui generis proprietary

interest which gives native people the right to occupy and use the land at their own discretion,”;

similarly Delgamuukw at [125] per Lamer CJ: “it is a sui generis interest that is distinct from

“normal” proprietary interests, most notably fee simple.” 40 Delgamuukw at [138] per Lamer CJ: “What aboriginal title confers is the right to the land itself.” 41 Delgamuukw at [166] per Lamer CJ: an “exclusive use and occupation of land” (emphasis in

original). 42 R v Sioui [1990] 1 SCR 1025 at 1055 per Lamer CJ : “The British Crown recognized that the

Indians had certain ownership rights over their land, it sought to establish trade with them which

would rise above the level of exploitation and give them a fair return.” 43 Delgamuukw at [190] per Lamer CJ: “This sui generis interest is not equated with fee simple

ownership”; at [111]: “aboriginal title as a sui generis interest in land … is distinct from a fee

simple”; similarly at [125] see footnote 39, and at [156]. 44 Delgamuukw at [117], and at [122] per Lamer CJ: “The …content of Aboriginal title is not

restricted to practices, customs and traditions which are integral to distinctive Aboriginal cultures.

… Aboriginal title also encompass mineral rights, and lands held pursuant to Aboriginal title

should be capable of exploitation in the same way, which is certainly not a traditional use for those

lands. … Aboriginal title permits the development of oil and gas reserves.” 45 Delgamuukw at [169] per Lamer CJ. 46 Guerin at 376 per Dickson J.


page 17

A further dimension of aboriginal title is the fact that it is held communally.

Aboriginal title cannot be held by individual Aboriginal persons; it is a

collective right to land held by all members of an Aboriginal nation.

Decisions with respect to that land are also made by that community. This

is another feature of aboriginal title which is sui generis and distinguishes it

from normal property rights.47 (emphasis in original)

(iii) US: Indian title

Indian title as a sovereign right

The cases of the Marshal trilogy (Johnson v McIntosh, Cherokee Nation v Georgia and

Worcester v Georgia)48 recognised Indian communities as “domestic dependant

nations”49 with continuing rights of limited sovereignty.50 The recognition of a

continuing Indian sovereignty carried with it the recognition of Indian law as

“law”, applying to all persons in Indian territory.51 Indian law as “law” is a

fundamental doctrine of US jurisprudence.52 The surrender of land subject to

Indian title is the surrender of sovereign rights over that land, unless US

legislation provides otherwise. Federal sovereignty and law is paramount, and

Congress has subjected Indian nations to substantial bodies of State law. 53

Indian title as a property right

Johnson v McIntosh held that “discovery gave exclusive title”54 and this “title” to

territory included a power to grant interests in land, subject to “the Indian right

47 Delgamuukw at [115] per Lamer CJ. 48 Marshall CJ delivered the opinion of the court in each case: Johnson v McIntosh 21 US 543 (1823),

Cherokee Nation v Georgia 30 US 1 (1831) (Thompson J, joined by Story J, dissenting) and

Worcester v Georgia 31 US 350 (1832) (Baldwin J dissenting). 49 Cherokee Nation v Georgia at 17. 50 Worcester v Georgia at 559: “The Indian nations had always been considered as distinct,

independent political communities, retaining their original natural rights, as the undisputed

possessors of the soil.” United States v Wheeler 435 US 313, 326 (1978): “Although physically

within the territory of the United States and subject to ultimate federal control, they nonetheless

remain a separate people, with the power of regulating their internal and social relations. The

powers of Indian tribes are, in general, 'inherent powers of a limited sovereignty which has never

been extinguished.'“ (Emphasis in original). 51 Williams v Lee 358 US 217 (1959) held that actions by a non-Indian against reservation Indians

was within the exclusive jurisdiction of the Navajo courts: “The cases in this Court have

consistently guarded the authority of Indian governments over their reservations”. Montana v

United States 450 US 544, 566 (1981), Indian nations retain jurisdiction over the conduct of non-

members when “that conduct threatens or has some direct effect on the political integrity, the

economic security, or the health or welfare of the tribe”. 52 Worcester v Georgia, 562: “The Cherokee Nation, then, is a distinct community occupying its

own territory, with boundaries accurately described, in which the laws of Georgia can have no

force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees

themselves, or in conformity with treaties and with the acts of Congress.” 53 There has been a diminution of the concept of Indian sovereignty since the Marshall trilogy:

Wilkins D, American Indian sovereignty and the US Supreme Court (Austin: U Texas Press, 1997). 54 Johnson v McIntosh at 574.


page 18

of occupancy”.55 In Fletcher v Peck56 and Johnson v McIntosh Marshall CJ did not

deny that a state might own the land,57 however, he adopted a different approach

in Worcester v Georgia, denying that any property vested in the discoverer:

[T]he King granted charters… They purport, generally, to convey the soil

from the Atlantic to the South Sea. ... …They were well understood to

convey the title which, according to the common law of European

sovereigns respecting America, they might rightfully convey, and no more.

This was the exclusive right of purchasing such lands as the natives were

willing to sell. The Crown could not be understood to grant what the

Crown did not affect to claim; nor was it so understood…. these grants

asserted a title against Europeans only, and were considered as blank paper

so far as the rights of the natives were concerned.58

Worcester v Georgia held that sovereignty respected “pre-existing rights”59 and

Indian nations “retain[ed] their original natural rights, as the undisputed

possessors of the soil”.60 Indian title was “complete ownership”61 and “Indians

…. were considered as owing them [Indian lands] by a perpetual right of

possession … [a right] as sacred as the fee simple”.62 Indian title includes all

55 Johnson v McIntosh at 573: the federal government “claimed and exercised, as a consequence of

this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These

grants have been understood by all, to convey a title to the grantees, subject only to the Indian right

of occupancy.” 56 In Fletcher v Peck 10 US 87 (1810) Johnson J (diss) held at 147 that Indian nations, whose lands

had not been acquired by conquest or purchase were “absolute proprietors of their soil”, and this

excluded the seisin in fee of another. The US had “nothing more than what was assumed at the first

settlement of the country, to wit, a right of conquest or of purchase, exclusively of all competitors”.

Marshall CJ at 142-43 did not accept this “the nature of the Indian title … is not such as to be …

repugnant to seisin in fee on the part of the state”, similarly his view in Johnson v McIntosh at 592. 57 It has always been accepted that Johnson v McIntosh was a case contrived for the purpose of

allowing a so minded Supreme Court to validate titles granted by the State of Virginia, and this has

been demonstrated by Robertson LG, Conquest by Law: How the Discovery of America

Dispossessed Indigenous Peoples of Their Lands (Oxford: OUP, 2005), which notes at 116 that

Marshall CJ assumed, following the Nonintercourse Act, that he was developing a principle for an

historical anomaly, ie grants of land prior to surrender of Indian title, that “would never recur”. 58 Worcester v Georgia at 544-545. These Charters are set out and discussed in Lester GS, The

Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (doctoral

thesis, Toronto 1981) [Lester] at 370-428. 59 Worcester v Georgia at 543: “It is difficult to comprehend the proposition that the inhabitants of

either quarter of the globe could have rightful original claims of dominion over the inhabitants of

the other, or over the lands they occupied; or that the discovery of either by the other should give

the discoverer rights in the country discovered which annulled the pre-existing rights of its ancient

possessors.” 60 Worcester v Georgia at 559: “retaining their original natural rights, as the undisputed possessors

of the soil, from time immemorial”. 61 United States v Tillamooks 392 US 40, 46 (1946): “As against any but the sovereign, original

Indian title was accorded the protection of complete ownership but it was vulnerable to affirmative

action by the sovereign”. Holden v Joy 84 US 211, 244 (1872): “Their title was absolute, subject only

to the pre-emptive right of purchase acquired by the United States…” See also footnote 64. 62 Mitchel v US 34 US 711, 745 (1835): “Indians were protected in the possession of the lands they

occupied, and were considered as owning them by a perpetual right of possession in the tribe”; and

at 746: Indian property rights were “as sacred as the fee simple of whites”.


page 19

elements that make the land “valuable”,63 and therefore includes rights to

minerals, water rights and timber rights.64 Indian title is a right to use the land as

the occupants see fit.65 Indian title is proven by historic “exclusive”66 occupation

of land, and can be protected by an action of ejectment67 or damages for trespass.

68 Domestic law protects Indian title as it protects any other right to property.69

Indian title as a communal right

Beginning with Johnson v McIntosh it became accepted that “the Indians never

had any idea of individual property in lands”.70 The individual Indian has no title

or right in tribal property,71 Indian title is a perpetual right “in the tribe”. 72

Unrecognized Indian title as a permissive occupancy

In 1946, the Supreme Court majority in Tillamooks73 affirmed that Indian title,

whether or not recognised by a formal act of the federal government, was a right

to property protected against taking without compensation under the US

63 United States v Klamath and Moadoc Tribes of Indians 304 US 119, 123 (1938). 64 United States v Shoshone Tribe 304 US 111, 116 (1938) “for all practical purposes, the tribe owned

the land. …The right of perpetual and exclusive occupancy of the land is not less valuable than full

title in fee. .. Minerals and standing timber are constituent elements of the land itself.” In Choteau v

Molony 16 How 203 (1853) the Supreme Court recognised Indian title to subsurface rights. 65 Johnson v McIntosh at 573-74: “the rightful occupants of the soil, with a legal as well as a just

claim to retain possession of it, and to use it according to their own discretion”. 66 Guardian of the Tribe of Hualpai v Sante Fe Pacific RRCo 314 US 339 (1941) [Sante Fe] at 345-47

“If it were established as a fact that the lands in question were, or were included in, the ancestral

home of the Walapais in the sense that they constituted definable territory occupied exclusively by

the Walapais (as distinguished from lands wandered over by many tribes), then the Walapais had

“Indian title”. 67 Marsh v Brooks 49 US 223, 232 (1850): “That an action of ejectment could be maintained on an

Indian right to occupancy and use, is not open to question. This is the result of the decision in

Johnson v McIntosh.” 68 In Sante Fe, 347 and Onieda I, 667-669 damages for trespass on Indian land were awarded. 69 Lee v Glover 8 NYR 189, 189 (SCNY, 1828): “if it be Indian property in land, it is protected by our

constitution and laws”; Leavenworth, Lawrence, & Galveston RR Co v United States 92 US 733, 742

(1875) “This perpetual right of occupancy, with the correlative obligation of the government to

enforce it”. 70 Johnson v McIntosh at 568 71 Choate v Trapp 224 US 665, 671 (1912): “The individual Indian had no title or enforceable right in

the tribal property.” 72 Mitchel at 745: “a perpetual right of possession in the tribe”. In United States v Dann 873 F 2d

1189, 1196 (1989) the Court of Appeals discussed individual title and stated: “Individual aboriginal

title is by no means a well-defined concept. The common view of aboriginal title is that it is held by

tribes. See, e.g., [Oneida II]. ….There is no theoretical reason why individuals could not establish

aboriginal title in much the same manner that a tribe does. An individual might be able to show

that his or her lineal ancestors held and occupied, as individuals, a particular tract of land, to the

exclusion of all others, from time immemorial, and that this title had never been

extinguished….Whether any such individual aboriginal title has existed or could exist, we need not

decide, for it is clear that the Danns make no such individual claim.” 73 United States v Tillamooks 392 US 40 (1946) [Tillamooks] Vinson CJ, Frankfurter, Douglas, and

Murphy JJ; Reed J (Rutledge and Burton JJ agreeing) dissented at 58: “Indians who continued to

occupy their Aboriginal homes, without definite recognition of their right to do so are like paleface

squatters.”


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Constitution.74 There was thus no legal significance in distinguishing between

Indian title that had been recognized by formal act of the federal government,

and that which had not, as each was a property right protected under the general

law and gave rise to a right to compensation on taking. In 1955 the Supreme

Court majority in Tee Hit Ton,75 effectively overruling Tillamooks, created an

additional type of Indian title (called unrecognized or common law or original

Indian title) and held that the Tee Hit Ton Tlingits of Alaska had this type of title.

It is well settled that in all the States of the Union the tribes who inhabited

the lands of the States held claim to such lands after the coming of the

white man, under what is sometimes termed original Indian title or

permission from the whites to occupy. That description means mere

possession not specifically recognized as ownership by Congress. …This is

not a property right but amounts to a right of occupancy which the

sovereign grants and protects against intrusion by third parties but which

right of occupancy may be terminated and such lands fully disposed of by

the sovereign itself without any legally enforceable obligation to

compensate the Indians.76

Even though this passage posits that unrecognised Indian title is a legal right

until terminated, it is a problematic description. The proposition that by not

expressly recognising Indian title, the sovereign thereby grants Indians the right

to occupy land is logical nonsense, and is contrary to both previous reasoning77

and fundamental doctrines of US law which categorise Indian treaties as grants

of rights by the Indian nations to the US.78 A distinction between recognised

native title and unrecognised native title has been rejected by the jurisprudence

of Australia, Canada, New Zealand and the Privy Council.79 The distinction

between recognized and unrecognized title remains significant in US

jurisprudence to the extent such distinction provides a basis on which to deny a

right to compensation for taking.80

74 Fifth Amendment to the US Constitution provides: “No person shall … be deprived of life,

liberty, or property, without due process of law; nor shall private property be taken for public use,

without just compensation.” Tillamooks, 51 per Vinson CJ: “Nor do other cases in this Court lend

substance to the dichotomy of "recognized" and "unrecognized" Indian title”. 75 Tee Hit Ton Indians v United States 348 US 272 (1955) [Tee Hit Ton]. Reed J delivered the

majority opinion, Vinson CJ, Douglas and Frankfurter JJ dissented. 76 Tee Hit Ton, 279. 77 See footnote 60. Newton N, “Federal Power Over Indians: Its Sources, Scope, and Limitations”

(1984) 132 U Pa L Rev 195, 247 – 253 demonstrates a lack of any historical basis for this distinction. 78 The reserved rights doctrine holds that a treaty is not a “grant of rights to the Indians, but a grant

of rights from them”: United States v Winans 198 US 371, 381 (1905). Rights not granted are

reserved to the Indians. 79 §3.1 Acquisition of sovereignty is based on full respect for pre-existing rights. 80 Tee Hit Ton, at 277-78; Where title is recognized, "compensation must be paid for subsequent

taking." However, at 288-89: Unrecognized Indian title "may be extinguished by the Government

without compensation." The case did not draw a distinction between valid methods of

extinguishment of title. Newton op cit, 249: “The Tee Hit-Ton rule remains relevant today because

many tribes live on executive order reservations that have never been recognized by Congress”.

The distinction appears to have been rejected in the Oneida Cases: see §2.2(e)(iii) Compensation for

the extinguishment of Indian title.


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(b) Extinguishment of native title

Comparative jurisprudence sees native title as a property right akin to

ownership, and has developed a jurisprudence consistent with common law

principles with respect to the loss of property or ownership rights. The two

primary methods recognized are purchase and legislative confiscation. A third

policy dictated by the desire to extinguish native title was the allotment system.

In New Zealand (by orders of the Native Land Court under various Native Lands

Acts),81 in the USA82 and in Canada,83 legislation was enacted to allow the direct

conversion of communal native title into alienable estates in fee simple. In New

Zealand some Mäori land was also legislatively confiscated.84 Situations in which

groups have been said to voluntarily abandon claims to land have also been

recognized.85

(i) New Zealand: extinguishment of Maori title

Maori title was extinguished by the purchase of Maori land before European

settlement was allowed, under a series of land purchase agreements.86

Extinguishment by clear and plain intention

In Symonds the New Zealand Supreme Court, relying on US jurisprudence,

envisaged extinguishment of Maori title only by purchase: “Native title … cannot

be extinguished (at least in times of peace) otherwise than by the free consent of

the Native occupier”.87 The Privy Council on appeal from New Zealand cited this

description with approval.88 However, subsequent jurisprudence has confirmed

that legislation specifically extinguishing Maori title, not enacted at the request of

relevant Maori, is valid. Maori title can be extinguished only by acting in “strict

81 Native Lands Acts of 1862 and 1865 (NZ). The preamble to the Native Lands Act 1865 (NZ)

reads: “Whereas it is expedient to amend and consolidate the laws relating to lands in the Colony

which are still subject to Maori proprietary customs and … to encourage the extinction of such

proprietary customs and to provide for the conversion of such modes of ownership into titles

derived from the Crown.”. 82 Royster J, “The Legacy of Allotment” (1995) 27 Ariz St LJ 1. The process is dated to the General

Allotment Act 1887 (US) (Dawes Act) but had begun before this. 83 Amendments to the Indian Act 1876 (Can) in 1888 were based on the Dawes Act. No individual

titles were in fact issued. 84 The Land Wars or Maori Rebellion of 1860-65 resulted in the enactment of the New Zealand

Settlements Act 1863 (NZ) which permitted the confiscation of large tracts of Maori land from both

the rebel and loyal Maori: Litchfield M, “Confiscation of Maori Land” (1985) VUW L Rev 335. 85 Williams v City of Chicago 242 US 434, 437 (1917) was the first case to specifically endorse

abandonment, “[W]hen [the Indians' right of occupancy] was abandoned all legal right or interest

which both tribe and its members had in the territory came to an end.” 86 Boast R (et al), Mäori Land Law (Wellington: Butterworths, 1999) at 49. 87 R v Symonds (1847) [1840-1932] NZPCC 387 [Symonds] at 390. 88 Nireaha Tamaki at 579.


page 22

compliance”89 with legislation “unambiguously directed towards”90 the

extinguishment of Maori title.

No principle of extinguishment by grant of tenure

Maori title cannot be extinguished by Crown grant, unless the enabling

legislation states that to be the case:

Unless there is legislative authority or provisions such as were found in ss

85 and 86 of the Native Land Act 1909, the Executive cannot, for example,

extinguish customary title by granting the land to someone other than the

customary owners. If it does so the grantee’s interest is taken subject to the

customary title.91

(ii) Canada extinguishment of Aboriginal title

The Crown in the colonies that became Canada embarked on a series of land

purchases to open up land for settlement.92 Those land surrender agreements

covered most of Canada (Treaty Canada).93

Extinguishment requires clear and plain intention

Following Calder,94 it was accepted that Aboriginal title could be extinguished

only by legislation which evinced a clear and plain intention to extinguish it.95

Because of the constitutional division of legislative power since 1867, only the

Dominion parliament can legislate to extinguish Aboriginal title.96 Since the

89 Te Runanganui o te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) at 24: “It

has been authoritatively said that they [native title rights] cannot be extinguished (at least in times

of peace) otherwise than … in strict compliance with the provisions of any relevant statutes”. 90 Nireaha Tamaki at 578: “It is well settled that customary title can be extinguished by the Crown

only by means of a deliberate Act authorized by law and unambiguously directed towards that

end.” 91 Nireaha Tamaki at 578, similarly Faulkner at 365: “the Executive cannot…extinguish customary

title by granting the land to someone other than the customary owners”. 92 For example Treaty of 3 October 1873 (North West Angle Treaty, No 3) provides: “The Saulteaux

tribe of the Ojibbeway Indians and all other the Indians inhabiting the district hereinafter described

and defined do hereby cede, release, surrender, and yield up to the government of the Dominion of

Canada, … all their rights, title and privileges whatsoever to the lands included within the

following limits”. See generally Reiter RA, The Law of Canadian Indian Treaties (Edmonton: Juris

Analytica, 1995). 93 Most of Canada between Ontario and Alberta was subject to agreement:

<http://atlas.nrcan.gc.ca/site/english/maps/historical/indiantreaties/historicaltreaties> 94 Calder at 208 per Hall J: “It being a legal right, it could not thereafter be extinguished except by

surrender to the Crown or by competent legislative authority.” 95 Sparrow at 1097: “The test of extinguishment to be adopted, in our opinion, is that the Sovereign's

intention must be clear and plain if it is to extinguish an Aboriginal right.” 96 Delgamuukw at [173] per Lamer CJ, Cory, McLachlin, and Major JJ: “Since 1871, the exclusive

power to legislate in relation to “Indians, and Lands reserved for the Indians” has been vested with

the federal government by virtue of s. 91(24) of the Constitution Act 1867 (UK). That head of

jurisdiction, in my opinion, encompasses within it the exclusive power to extinguish aboriginal

rights, including aboriginal title.”


page 23

recognition of Aboriginal rights, including Aboriginal title, by s.35(1) of the

Constitution Act 1982 (Can),97 legislative infringement of Aboriginal title must also

satisfy a “justification” test.98

No principle of extinguishment by grant of tenure

No Supreme Court cases have envisaged the extinguishment of Aboriginal title

by grant of tenure, and Canadian jurisprudence holds that the grant of an estate

in fee simple over land subject to Aboriginal title is voidable. 99

(iii) USA: extinguishment of Indian title

British settlement of the American Colonies proceeded under a series of treaties

with Indian nations providing for the surrender of Indian land.100 This practice

continued after the American Revolution.101 Such agreements were regarded as

the cession of Indian ownership of land.102 Following the Revolution, the

Nonintercourse Act prohibited the original 13 States and all other persons from

extinguishing Indian title except under federal treaty.103 Historically, States of the

Union, other than the original 13 States, held no sovereign, legal or proprietary

rights over Indian land within their borders, as State law did not apply.104

97 Section 35(1): “The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are

hereby recognized and affirmed.” 98 R v Sparrow [1990] 1 SCR 1075 at 1109, see footnote 120. 99 Chippewas of Sarnia Band v Attorney General of Canada [2001] 1 CNLR 56 (Ont CA) see

discussion in text accompanying Chapter 6 footnote 64. 100 De Puy H, Bibliography of the English Colonial Treaties with the American Indians including a

Synopsis of Each Treaty (New York The Lenox Club 1917). 101 Prucha F, American Indian Treaties: The History of a Political Anomaly (Berkeley: U California

Press, 1994). There were over 400 treaties and executive agreements between 1778-1902. Cohen F,

“Original Indian Title” (1947) 32 Minn L Rev 28 [now Strickland R (ed), Felix Cohen’s Handbook of

Federal Indian Law (Charlottesville: The Mitchie Company 1982) at 280]: “practically all of the real

estate acquired by the United States since 1776 was purchased not from Napoleon or any other

emperor or czar but from its original Indian owners.” 102 There will always remain the question of what “rights” Indians were selling from their point of

view. From the government perspective, it was buying ownership. For example, the speech of

President Jefferson, 22 April 1808 counselled Indians in negotiating to sell land, “But in all these

things you have been free to do as you please; your lands are your own; your right to them shall

never be violated by us; they are yours to keep or to sell as you please. Whenever you find it your

interest to dispose of a part to enable you to improve the rest, and to support your families in the

meantime, we are willing to buy, because our people increase fast”: Washington H (ed), Writings of

Thomas Jefferson (New York: Derby and Jackson, 1859) Vol 8 at 211. 103 In 1790, Congress passed the first Indian Trade and Intercourse Act 1790 1 Stat 137,

[Nonintercourse Act] (now 25 USC. §177), governing Indian lands, including land within the

original 13 States, s.4: “no sale of lands made by any Indians, or any nation or tribe of Indians

within the United States, shall be valid to any person or persons, or to any state, whether having

the right of pre-emption to such lands or not, unless the same shall be made and duly executed at

some public treaty, held under the authority of the United States.” 104 Kansas Indians 5 US (Wall) 737, 755-757 (1867); New York Indians 5 US (Wall) 761, 771-772

(1867). However, provisional State legislation respecting Indian land, to take effect when the Indian

title should be extinguished, was not prohibited: George v Gamble 2 Overt (Tenn) 170 (1812).


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Extinguishment by sovereign act

The US jurisprudence on extinguishment of Indian title is unique, conditioned by

the recognition of Indian title as both a legal right protected by the domestic legal

system, and a sovereign right. Indian title can be terminated only by a “sovereign

act”,105 and after the Revolution, only by a sovereign act of the federal

government. Whether the sovereign should exercise the power to extinguish

Indian title is not a matter a court will review.106

Extinguishment requires clear and plain intention

Indian title, including unrecognised Indian title,107 can be extinguished only by

sovereign act where the intention to effect such extinguishment is “clear and

plain”108 or “plain and unambiguous”.109

No extinguishment by a grant of tenure

A grant of tenure over Indian land was traditionally regarded as “void”.110 An

alternative jurisprudence, which became dominant, held that the grants were

valid but Indian title was unaffected. A grantee received a “naked fee”111 subject

to Indian title, and therefore a right devoid of all rights of possession.112 Well

prior to the Marshall trilogy there was a “commonplace” trade in the “contingent

future interests” of the naked fee.113 In US jurisprudence there is therefore no

105 County of Oneida Indian Nation v County of Oneida 414 US 661 (1974) [Oneida I] at 666: “Indian

title and good against all but the sovereign, could be terminated only by sovereign act.” 106 Sante Fe, 347: “The manner, method and time of such extinguishment raise political not

justiciable issues.” 107 Oneida I at 669, quotation set out text accompanying footnote 124. 108 Lipan Apache Tribe v United States 180 Ct Cl 487, 492 (1967). 109 County of Oneida v Oneida Indian Nation 470 US 226 (1985) [Oneida II] at 248. 110 Fletcher v Peck, 143 per Johnson J (diss): “It is an established principle in our jurisprudence, that

a grant of land on which the Indian title has not been extinguished, is void.” Danforth v Wear 22

US (9 Wheat) 673, 675 (1824): “As to lands surveyed within the Indian boundary, this Court has

never hesitated to consider all such surveys and grants as wholly void.” Minter v Shirley, 3 Miss

Reports 376, 384 (USSC, 1871): “the government never regarded the absolute title to the soil as

resting in the United States, as the proprietors in fee, until ceded by the Indians. Nor did they

undertake to dispose of them by grants until the acquisition of the Indian title.” 111 Beecher v Wetherby 95 US 517, 525 (1877): “But the right which the Indians held was only that of

occupancy. The fee was in the United States, subject to that right…The grantee, it is true, would

take only the naked fee, and could not disturb the occupancy of the Indians: that occupancy could

only be interfered with or determined by the United States.” 112 Buttz v Northern Pacific Railroad 119 US 55, 67-8 (1886): “They accordingly made grants of lands

occupied by the Indians, and these grants were held to convey a title to the grantees, subject only to

the Indian right of occupancy... respected by the courts until extinguished; when the patentee took

the unencumbered fee.” Similarly Sante Fe, at 347 “If the right of occupancy of the Walapais was

not extinguished … then the respondent's predecessor took the fee subject to the encumbrance of

Indian title”; Mitchel v United States, 745-46: “while the lands remained in possession of the

Indians, though possession could not be taken without their consent”. 113 Banner S, How the Indians Lost Their Land (Cambridge, MA: Belknap Press, 2005) at 162 (“In

the 1790s, transactions in preemption rights appear to have been commonplace”) and 163

(“contingent future interests”). In Marshall v Clark 1 Kentucky 77, 80-1 (KCA 1791): “The dormant

title of the Indian tribes remained to be extinguished by government, either by purchase or by


page 25

proposition that Indian title can be affected or extinguished by a grant of an

estate in fee simple under general legislation.

A land grant may be part of the evidence that the sovereign intends to extinguish

Indian title by doing a series of acts.114 But being part of the evidence of a

sovereign intention is not a proposition that the land grant itself extinguishes

Indian title. Federal legislation, authorising the grant of an estate in fee to an

individual, pursuant to legislation enacted for the very purpose of settlement of

Indian claims, would show a clear and plain intention to extinguish Indian

title.115

(c) Compensation for extinguishment of native title

By the application of the principles of the common law with respect to the

protection of property rights, comparative jurisprudence holds that there is a

presumption that compensation is payable for the extinguishment of native title

in the absence of a clear and plain legislative provision to the contrary.

(i) Compensation for extinguishment of Maori title

The Treaty of Waitangi Act 1975 (NZ) enables the hearing of all past Maori land

disputes by the Waitangi Tribunal. The Tribunal has in various reports

recommended that compensation be paid for the wrongful taking of Maori land

and compensation has been paid in every case.116 Following the National

Overview Report in 1997,117 the Crown accepted that all land confiscations

(raupatu) were a breach of Treaty principles, and that all the orders of the Native

Land Court after 1865 (ie orders converting Maori title to alienable estates in fee

conquest, and when that was done it enured to the benefit of the citizens who had previously

acquired a title from the crown”. The case involved a land dispute in which Marshall's father was

plaintiff. Banner, argues that, as a result of the trade in the naked fee, the government’s title came to

be thought of as the real title, and Indian title as the right of tenants to mere occupation (“As this

practice grew commonplace, lawyers increasingly came to think of the Indians as tenants on the

land rather than owners of it”), leading to the eventual description of unrecognized Indian title as

equivalent to a squatter’s “right”: Tillamooks minority, see footnote 73. 114 United States v Gemmill 535 F 2d 1145 (1976) held a century-long course of conduct, of which the

final act - the federal payment to the Indians for the land – was found to demonstrate an

“unambiguous” congressional intention to extinguish Indian title. An Act may be “interpreted as

containing machinery for extinguishment of claims, including those based on Indian right of

occupancy since Congress had provided a method for extinguishment”: Sante Fe at 351. 115 See Alaska Native Claims Settlement Act 1971, 43 USC §§ 1601-1629a [ANCSA], text

accompanying footnote 129 116 For example the Ngai Tahu Claims Settlement Act 1996 (NZ) provides for Crown apology for

unlawful acts, the creation of a cash fund for purchases of surplus Crown lands, transfer of Crown

properties; rights of first refusal over certain Crown properties; and the making of various

agreements which give resource co-management rights. The settlement also recognises rights of

Ngai Tahu to certain shellfish, and property in all greenstone in the South Island. 117 Ward A, Rangahaua Whanui National Overview Report (Wellington: GP Pubs for Waitangi

Tribunal Research Services, 1997) in three volumes.


page 26

simple) were also in breach of Treaty principles, and has commenced a process

for payment of compensation for all these actions. 118

(ii) Compensation for extinguishment of Aboriginal title

Compensation prior to the Constitution Act 1982

Canadian law has always recognised a right to compensation for the

extinguishment of Aboriginal title.119

Compensation after the Constitution Act 1982

The recognition of Aboriginal rights in the Constitution Act 1982 (Can) requires a

reconciliation of the power to extinguish Aboriginal title with its constitutional

recognition, and “the best way to achieve that reconciliation is to demand the

justification of any government regulation that infringes upon or denies

Aboriginal rights.”120 It is within the analysis of justification that the question of

whether “fair compensation is available”121 is addressed.

(iii) Compensation for extinguishment of Indian title

With respect to the taking of recognised Indian title, compensation is payable, as

Indian title is a proprietary right no “less valuable than full title in fee”.122 Tee Hit

Ton held that unrecognised Indian title as a permissive right, although

enforceable against third parties, may be taken by the federal government

without consent and without compensation.123 Whether this principle is still good

law is to be doubted. In the 1980s, the Oneida Indian Nation sought

compensation with respect to land taken contrary to the Nonintercourse Act. In

Oneida I, the Supreme Court, in recognising a right to compensation declined to

distinguish between recognized and unrecognized Indian title: “a tribal right of

occupancy, to be protected, need not be ‘based upon a treaty, statute, or other

formal government action’,”124 citing Sante Fe, Worcester v Georgia and Mitchel.125

118 Lashley M, “Implementing Treaty Settlements via Indigenous Institutions: Social Justice and

Detribalization in New Zealand” (2000) 12 The Contemporary Pacific 1;. Office of Treaty

Settlements, Healing the past, building a future (2ed Wellington: OTS, 2002); see for example,

Waikato Raupatu Claims Settlement Act 1995 (NZ); Pouakanui Claims Settlement Act 2000 (NZ). 119 Delgamuukw at [203] per La Forest J: “Indeed, the treatment of “Aboriginal title” as a

compensable right can be traced back to the Royal Proclamation“. Similarly Delgamuukw BCCA at

537 per McFarlane JA. 120 Sparrow at 1109 per Dickson CJ and La Forest J. 121 Sparrow at 1119 per Dickson CJ and La Forest J. 122 United States v Shoshone Tribe 304 US 111, 116 (1938). 123 Tee Hit Ton Indians, 279: “This is … because Indian occupation of land without government

recognition of ownership creates no rights against taking or extinction by the United States

protected by the Fifth Amendment or any other principle of law.” 124 Oneida I at 669 quoting from Sante Fe, 347. 125 Oneida I at 669 referring to the passage in Mitchel 34 US at 746 that the Indian right of

occupancy is considered “as sacred as the fee simple of the whites”.


page 27

This decision was reaffirmed in Oneida II,126 and subsequent litigation.127 Tee Hit

Ton was not cited in the Oneida cases. The view of US courts below the Supreme

Court is that there is no distinction between recognised and unrecognised Indian

title with respect to the right to compensation.128

The legacy of Tee Hit Ton, a decision relating to Alaska, is twofold.

Notwithstanding the decision, the Alaska Native Claims Settlement Act 1971129

provided for “fair and just settlement of all claims by Natives and Native groups

of Alaska, based on aboriginal land claims”,130 including payment of

compensation. The second consequence flows from the fact that, just as Tee Hit

Ton did not expressly overrule Tillamooks, the Oneida cases did not expressly

overrule Tee Hit Ton. The Oneida cases, in recognizing a right to compensation,

either rejected a conception of unrecognized Indian title altogether, or if a

conception of unrecognized Indian title was affirmed, then unrecognized Indian

title, as a permissive occupancy, was considered to be property under the

Constitution, extinguishment of which dictated the payment of compensation.

126 Oneida II 470 US 226 (1985). 127 County of Sherrill v Oneida Indian Nation 544 US 1, 12 (2005): “Our 1985 decision recognized

that the Oneidas could maintain a federal common-law claim for damages for ancient

wrongdoing”.(emphasis added) The Oneida Cases concerned recognized Indian title, but the

passage underlined in the quotation is a reference to unrecognized Indian title. 128 Alabama-Coushatta Tribe of Texas v US 2000 WL 1013532 (Fed Cl) at 15; Lipan at 494; US ex rel

Chunie v Ringrose 788 F 2d 638, 642-43 (1986). 129 ANCSA. Ford M, “Indian Country and Inherent Tribal Authority: Will They Survive ANCSA?”

(1997) 14 Alaska L Rev 443 notes that from the Treaty Concerning the Cession of Russian

Possessions in North America 1867, to the Alaska Statehood Act of 1958 undefined Indian land

rights have always been acknowledged. 130 43 USC § 1601(a).


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§2.3 Aboriginal rights

In Canada, New Zealand and the USA, Aboriginal rights, other than native title,

are recognised. These are generally rights such as hunting, fishing and forestry

rights on land over which native title has never been, or is no longer, asserted.131

Such rights do not require recognition by executive or legislative act.

The recognition of distinct Aboriginal rights draws attention to Aboriginal title as

a conceptualisation about “title” to land, and the idea of “title” as a controlling

aspect. It emphasises that the fragmentation of Aboriginal title into a bundle of

Aboriginal rights has been rejected in the comparative jurisprudence. Native title

is a true form of title to land, notwithstanding that other non-title rights over

land are also recognized.

In US jurisprudence most Indian rights now exist as reservations of specific

rights in treaties, and the jurisprudence inevitably involves a comparison

between the treaty reservation of the right and the constitutionally permissible

effect of legislation affecting that right. Unlike title, a conception of rights

envisages co-existing Indian and state rights, rather than a blanket extinguishment

of rights: “Indian treaty rights can coexist with state management of natural

resources”.132 There must be a clear and plain intention to regulate, diminish or

extinguish Indian rights.133 The extinguishment of Indian title does not mean

extinguishment of Indian rights over the land.134

The common law of Canada recognises Aboriginal rights.135 An Aboriginal

right136 can be established independently of Aboriginal title: “even if they have not

shown that their occupation and use of the land was sufficient to support a claim of title

to the land, they will have demonstrated that they have an Aboriginal right”137

(emphasis in original). The source of Aboriginal rights lies in a notion of respect for

131 See §3.2(d) Pre-existing rights include rights unknown to the common law. 132 Minnesota v Mille Lacs Band of Chippewa Indians 526 US 172, 219 (1999) per O'Connor J: “We

have repeatedly reaffirmed state authority to impose reasonable and necessary non-discriminatory

regulations on Indian hunting, fishing, and gathering rights in the interest of conservation.” 133 Ibid: “Congress may abrogate Indian treaty rights, but it must clearly express its intent to do so.”

There must be “clear evidence that Congress actually considered the conflict between its intended

action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by

abrogating the treaty.” 134 Leech Lake Band of Chippewa Indians v Herbst 334 F Supp 1001 (1971) holding that legislation

which provided for a complete extinguishment of Indian title did not abrogate treaty fishing and

hunting rights. 135 Van der Peet at [28] per Lamer CJ: “Aboriginal rights existed and were recognized under the

common law”. 136 Mitchell v MNR [2001] 1 SCR 911 [Mitchel v MNR] at [12] per McLachlin CJ Gonthier, Iacobucci,

Arbour and LeBel JJ: “an Aboriginal claimant must prove a modern practice, tradition or custom

that has a reasonable degree of continuity with the practices, traditions or customs that existed

prior to contact. The practice, tradition or custom must have been “integral to the distinctive

culture” of the Aboriginal peoples, in the sense that it distinguished or characterized their

traditional culture and lay at the core of the peoples' identity.” 137 R v Adams [1996] 3 SCR 101 at [26] per Lamer CJ delivering judgment of Lamer CJ and La

Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.


page 29

a right to live,138 and so conceptions of property need have no relevance to

Aboriginal rights.139Aboriginal rights are true legal rights140 and include land use-

rights such as the right to hunt and fish.141. It has been argued that Aboriginal

rights include quasi-sovereign rights.142 Aboriginal rights held at an individual

level are not recognised.143 A clear and plain intention is required to extinguish

Aboriginal rights.144 The grant of an estate in fee simple does not extinguish an

Aboriginal right over that land. 145

Maori rights are recognised by New Zealand law.146 Such rights are communal147

and now generally protected and regulated by legislation.148 Customary rights

can be extinguished by “adverse legislation or procedure which plainly and

clearly extinguishes it”.149 They are not extinguished by the grant of interests in

land. 150

138 R v Sappier; R v Gray [2006] 2 SCR 686 at [45]: “The aboriginal rights doctrine…arises from the

simple fact of prior occupation of the lands now forming Canada. …The focus of the Court should

therefore be on the nature of this prior occupation. … an inquiry into the pre-contact way of life of a

particular aboriginal community, including their means of survival, their socialization methods,

their legal systems, and, potentially, their trading habits.” 139 Ibid at [21]: “In characterizing aboriginal rights as sui generis, this Court has rejected the

application of traditional common law property concepts to such rights”. 140 Van der Peet at [28] per Lamer CJ: “The task of this Court is to define aboriginal rights in a

manner which recognizes that aboriginal rights are rights.” 141 For example, Sparrow (fishing). 142 An inherent Aboriginal right to self-government has been recognized by executive policy:

Department of Indian Affairs and Northern Development (Canada), Federal Policy Guide:

Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the

Inherent Right and the Negotiation of Aboriginal Self-Government (Ottawa: Minister of Public

Works and Government Services Canada, 1995) at 3-4; Slattery B, “What are Aboriginal Rights?” in

Foster H, Raven H and Webber J, (eds) Let Right Be Done: Calder, Aboriginal Title, and the Future

of Indigenous Rights (Vancouver: UBC Press, 2007) argues that Aboriginal rights also include the

right to conclude treaties, the right to customary law, the right to honourable treatment by the

Crown, and the right of cultural integrity. 143 R v Sappier; R v Gray at [26]: “The right to harvest wood for domestic uses is a communal one.

…The right to harvest… is not one to be exercised by any member of the aboriginal community

independently of the aboriginal society it is meant to preserve.” In Beattie v Canada (2000) 197 FTR

209 at 215, Rouleau J struck out a pleading claiming breach of individual Aboriginal rights: “In law,

the plaintiffs have no personal entitlement in regard to mineral rights”. 144 Sparrow at 1097: “The test of extinguishment to be adopted, in our opinion, is that the

Sovereign's intention must be clear and plain if it is to extinguish an Aboriginal right.” Similarly R

v Sappier; R v Gray at [57]. 145 See §6.3(d) Australian jurisprudence: the extinguishment of native title by grant of an estate in

fee simple. 146 In Te Weehi, 690-691 the High Court recognised a Maori fishing right as non-territorial and

existing independently of any proprietary right over land: “the customary right contended for in

this case is not based upon ownership of the land or upon an exclusive right to a foreshore or bank

of a river. In that sense this claim is a “non-territorial” one.” 147 Whata-Wickliffe v Treaty of Waitangi Fisheries Commission CA73/04 [30 June 2004] (NZCA) at

[126]: “fisheries were always a matter of iwi or hapu mana, not individual mana. … individual

ownership is not customary.” 148 For example, Maori Fisheries Act 1989 (NZ); Treaty of Waitangi (Fisheries Claims) Settlement

Act 1992 (NZ). 149 Te Weehi at 686. 150 See §6.3(d) Australian jurisprudence: the extinguishment of native title by grant of an estate in

fee simple.


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§2.4 Conclusion: native title as ownership and property

Native title as ownership

Jurisprudence in New Zealand (Wi Parata years) and Canada (St Catherine's), was

once able to acknowledge absolute ownership of land by the Crown by denying

Aboriginal ownership. The jurisprudence of New Zealand (Ngati Apa), Canada

(Delgamuukw) and the USA (Worcester v Georgia, Onieda cases) now acknowledge

native title as ownership or a property right akin to ownership, a right to

everything on or under the land, and a right to use the land for any lawful

purpose. The absolute nature of the indigenous entitlement to land that the

comparative jurisprudence recognises, prior to any statutory modification or

extinguishment, emphasises that holders of native title hold rights of ownership.

Communal title to land

The comparative jurisprudence sees native title as a communal assertion of right.

No individual possesses native title. Native title is about “title” to land, a right of

exclusionary control asserted at the communal level.151

Acquisition and extinguishment of native title

The comparative jurisprudence establishes three propositions with respect to the

extinguishment of native title which flow from the recognition of native title as a

form of property akin to ownership:

1. native title can be purchased from the native title holders;

2. native title can be extinguished only by an executive or legislative act

evincing a clear and plain intention to do so;

3. there is no doctrine of extinguishment of native title by grant of tenure.

The third proposition is a consequence of the second – the grant of an interest in

land under general legislation is not a clear and plain intention to extinguish

native title.

Compensation for the extinguishment of native title

Comparative jurisprudence dictates that compensation is presumed to be

payable for the extinguishment of native title, in the absence of a clear and plain

legislative provision to the contrary. In US jurisprudence the right to

compensation is guaranteed by the Constitution, and so Indian title cannot be

taken without the payment of compensation.

151 A proposition developed more fully at §4.2(b)(ii) The centrality of the community: the locus

of exclusive possession.


page 31

Relevance of Aboriginal rights

Comparative jurisprudence holds that various Aboriginal land-use rights are

recognised by the common law as existing independently of native title, and

comparative jurisprudence has declined to fragment native title into a bundle of

separate land-use rights. In the comparative jurisprudence, native title remains a

true form of title to land akin to ownership.

Chapter 3 - Full respect: The standard by which to assess the conceptualisation and

extinguishment of native title

page 32

CHAPTER 3 - FULL RESPECT: THE STANDARD BY WHICH TO ASSESS

THE CONCEPTUALISATION AND EXTINGUISHMENT OF NATIVE TITLE

_____________________________________________________________

Australian law recognises native title is a proprietary interest in land on the basis

of full respect for pre-existing rights. The idea of full respect rests on three bases.

§3.1 Acquisition of sovereignty is based on full respect for pre-existing rights

The first basis for full respect is that, not only did the acquisition of imperial

sovereignty not extinguish pre-existing rights to land, it was expressly predicated

on the basis that pre-existing rights would be fully respected. Sovereignty was

asserted in order to subject the lands and inhabitants to the new sovereign

power, not to disturb pre-existing property rights. Pre-existing rights continued

under the lex loci in ceded or conquered colonies, and under the introduced law

in settled colonies, as the common law right of native title.


native title

The second basis for full respect is that, in settled colonies, introduced English

law recognised native title under the continuity doctrine. The continuity doctrine

dictates that pre-existing rights, including rights unknown to the common law,

are recognised and protected as the common law right of native title, and that

introduced law is modified to the extent necessary to accommodate the

recognition of native title.


title

In Australia the recognition of native title also rests on a third basis: that to deny

the existence of native title is inconsistent with the common law principle of

equality before the law.



page 33

§3.1 Acquisition of sovereignty is based on full respect for pre-existing rights

Under English law, British sovereignty over the Colony of New South Wales was

established on 7 February 1788,1 and over the remaining Australian Colonies at

later dates. It is a principle of colonial constitutional law that the acquisition of

sovereignty, whether by conquest, cession or settlement, is on the basis of full

respect for the property rights of existing inhabitants.

(a) Acquisition of sovereignty by settlement, conquest and cession

Writing in 1765, Blackstone stated that English law recognised three ways of

acquiring sovereignty over new lands: occupation [or settlement], conquest and

cession, and the law in force in the new lands depended on the manner by which

sovereignty was acquired. 2 With respect to colonies gained by conquest, or ceded

by treaty, the king might change pre-existing laws, “but, till he does actually

change them, the ancient laws of the country remain”.3 But with respect to lands

claimed by a “right of occupancy only, by finding them desert and uncultivated,

and peopling them from the mother-country”4 then: “Such colonists carry with

them only so much of the English law, as is applicable to their own situation and

the condition of an infant colony.”5 The Australian Colonies are settled colonies.6

(b) Pre-existing rights survive the change in sovereignty and are fully

respected

Australian and comparative jurisprudence hold that rights that predate

European colonization survive the change in sovereignty, whether sovereignty is

acquired by conquest, cession or settlement.7 Those pre-existing rights continue

under the lex loci in conquered or ceded colonies, and under English law in

settled colonies because the purpose of the colonial endeavour was to assert

sovereignty, primarily against other European nations, rather than to destroy the

pre-existing social and legal order in the colonial lands. The High Court stated

that extinguishment of native title was “an unnecessary step to take”8 because the

1 Mabo at 78-79 per Deane and Gaudron JJ. 2 Earlier sources treated plantations and conquests as synonymous: McHugh PG, The Common-

Law Status of Colonies and Aboriginal “Rights”: How Lawyers and Historians Treat the Past (1998)

61 Sask L Rev 393 [McHugh Common Law] at 408. 3 1 Blackstone Commentaries at 104-5. 4 1 Blackstone Commentaries at 104 and all later editions of Blackstone. 5 1 Blackstone Commentaries (4ed, 1770) at 107. 6 §3.2 Introduction of English law. 7 Australia: Mabo at 57 per Brennan J: “a mere change in sovereignty does not extinguish native

title to land” Similarly 82 per Deane and Gaudron JJ, 184 per Toohey J. Canada: Roberts v Canada

[1989] 1 SCR 322 at 340: “aboriginal title pre-dated colonization by the British and survived British

claims of sovereignty”. NZ: Te Weehi at 687: “Local laws and property rights of (native) peoples in

ceded or settled colonies were not set aside by the establishment of British sovereignty.” Ngati Apa

at [13] per Elias CJ: “The transfer of sovereignty did not affect customary property.” USA: United

States v Percheman 32 US 51 (1833) 86-87 per Marshall CJ. 8 Western Australia v Commonwealth (1995) 183 CLR 375 [Native Title Act Case] at 422 per Mason

CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ: “But the facts revealed by the history of the

establishment of Western Australia show only that it was intended to exercise the sovereign power



page 34

colonial policy of making lands available for settlement by Europeans could be

implemented without extinguishment. By the Act of State acquiring territory, the

new Sovereign can extinguish pre-existing rights by clear and unambiguous act,

although the presumption is that no extinguishment is intended,9 and no such

intention was manifested in the Australian Colonies.10

While non-extinguishment dictates recognition of native title, there is a wider

principle than simply non-extinguishment. The Privy Council in Amodu Tijani11

set out a principle of full respect for pre-existing property rights as a postulate of

the acquisition of sovereignty by cession:

No doubt there was a cession to the British Crown, along with the

sovereignty, of the radical or ultimate title to the land, in the new colony,

but this cession appears to have been made on the footing that the rights of

property of the inhabitants were to be fully respected. This principle is a

usual one under British policy and law when such occupations take place. 12

Similarly in Adeyinka Oyekan v Musendiku Adele13 the Privy Council stated:

The effect of the Act of State is to give to the British Crown sovereign

power to make laws and to enforce them, and therefore the power to

recognize existing rights or extinguish them or to create new ones. … In

inquiring, however, what rights are recognized, there is one guiding

principle. It is this: The courts will assume that the British Crown intends

that the rights of property of the inhabitants are to be fully respected.14

In Mabo Brennan J applied the Adeyinka Oyekan passage,15 and Deane and

Gaudron JJ applied the Amodu Tijani passage,16 of full respect for pre-existing

rights, to the acquisition of sovereignty by settlement over the Colony of New

of the Crown to grant land to immigrant settlers. .. an inference that the British Crown intended a

general extinguishment of native title cannot be drawn. Extinguishment would have been seen to

be an unnecessary step to take. The Crown's colonial policy was capable of being implemented

without a general extinguishment of native title.” 9 Mabo at 95 per Deane and Gaudron JJ: “Both legal principle relating to the deprivation of

property or rights and considerations of justice require that any such act or declaration be clear and

unambiguous”; and at 57 per Brennan J. 10 Native Title Act Case at 422 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ. 11 Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399. 12 [1921] 2 AC 399 at 407. 13 Adeyinka Oyekan v Musendiku Adele (1957) 1 WLR 876 (PC). 14 ibid at 880 per Lord Denning. 15 Mabo at 56 per Brennan J. 16 Mabo at 82 per Deane and Gaudron JJ referring to “the kinds of pre-existing native interests in

land which are assumed to have been fully respected under the common law applicable to a new

British Colony” stated: “Similarly, in Amodu Tijani .. at 407, the Privy Council affirmed and

applied the “usual” principle “under British ... law” that when territory is occupied by cession, “the

rights of property of the inhabitants (are) to be fully respected”.



page 35

South Wales. Comparative jurisprudence has also applied the principle of

sovereign respect to all forms of acquisition of sovereignty.17

(c) Aboriginal communities as objects of Crown sovereignty

On the assertion of imperial sovereignty, Aboriginal people in Australia became

British subjects.18 The dispossession of British subjects in England occurred for

reasons of domestic public policy (for example, to construct railways) pursuant

to clear, and originally case specific, legislative authority.19 The dispossession of

Aboriginal people occurred at the communal level for the purpose of colonial

settlement, as part of the sovereign purpose of peopling the land against claims

by other European sovereigns.20 Aboriginal communities were vulnerable to the

direct exercise of sovereign power in a way that other British subjects were not.

Aboriginal communities were the objects against which imperial sovereignty was

directed: conquest or cession, the sword or treaty. In Mabo, Brennan J stated that

Aboriginal dispossession was a result of the exercise of sovereignty powers:

They were dispossessed by the Crown's exercise of its sovereignty powers

to grant land to whom it chose and to appropriate to itself the beneficial

ownership of parcels of land for the Crown's purposes.21

Non-Aboriginal subjects were not dispossessed by granting their land to others.

The issue that arises in this context is whether the directing of Crown sovereignty

at Aboriginal communities dictates the development of common law doctrines

addressing the unique vulnerability of Aboriginal communities as objects of

Crown sovereignty. Canadian and New Zealand jurisprudence hold that a

fiduciary duty on the Crown, with respect to the surrender or extinguishment of

17 Hall J in Calder at 402: “The appellants rely on the presumption that the British Crown intended

to respect native rights; therefore, when the Nishga people came under British sovereignty.” In

Mitchell v MNR at [144] Binne J cited Lord Denning’s guiding principle and explained recognition

of Aboriginal title in the following manner: “As with the modern law of aboriginal rights, the law

of sovereign succession was intended to reconcile the interests of the local inhabitants across the

empire to a change in sovereignty”. Rhode Island v Massachusetts 37 US 657 (1838): “That when a

territory is acquired by treaty, cession, or even conquest, the rights of the inhabitants to property,

are respected and sacred.” 18 Mabo at 38 per Brennan J: “Upon the Crown acquiring sovereignty, Aboriginal persons became

British subjects owing allegiance to the Imperial Sovereign entitled to such rights and privileges

and subject to such liabilities as the common law and applicable statutes provided….The common

law thus became the common law of all subjects within the Colony who were equally entitled to the

law's protection as subjects of the Crown. Similarly R v White and Bob (1964) 50 DLR (2d) 613, 617-

618: “Indian tribes were not separate nations, being comprised of British subjects.” 19 First recorded takings Act appears to be Repair of Roads and Bridges Between Abingdon and

Dorchester Act, 9 Hen V, c11 (1421) which declared the road and bridges common highways, and

authorised the inhabitants of the area to take gravel, trees, or loam for the repair of the structures. 20 This is commonly ascribed as the motivation for British settlement: Martin G (ed), The Founding

of Australia: The Argument about Australia’s Origins (Sydney: Hale & Iremonger, 1978) examines

imperial policy justifications for settlement, and notes Matra’s ‘Proposal for establishing a

Settlement in New South Wales’, 23 August 1783 did not mention transportation of convicts. 21 Mabo at 50 per Brennan J.



page 36

native title, arises by reason of this unique vulnerability to the direct exercise of

sovereign power.22 US jurisprudence recognises trust like obligations towards

Indians.23 A fiduciary duty has not been recognized in Australian jurisprudence.24

(d) Native title to be reconciled with Crown sovereignty

Sovereignty, as the ultimate source of legal authority, dictates that subjects

cannot possess legal rights inconsistent with sovereign authority. Aboriginal

rights become common law rights “unless … incompatible with the Crown's

assertion of sovereignty”.25 Therefore full respect for native title must be

manifested in a way that gives meaning to Crown sovereignty.26 A pre-existing

right of exclusive occupation cannot be transmitted in toto to a group of British

subjects so as to enable them to found a new colony independent of the Crown, a

concern expressed in Symonds:

If a subject of the Crown could by his own act, unauthorized by the Crown,

acquire against the Crown a right to any portion of the lands of a new

country, it is plain that he might, acting upon that right, proceed to form a

colony there. Now, the law of England denies to any subject the right of

forming a Colony without the license of the Crown.27

Claims to Aboriginal rights akin to immunity from the legislative or political

power of the state raise issues affecting Crown sovereignty. But does the

reconciling of such rights with Crown sovereignty have meaning for native title

as a property right under domestic law? A claim to native “title” is a claim to a

domestic property right, not a claim that Aboriginal law is a superior source of

law, or source of immunity from national sovereignty. In Australian and

comparative jurisprudence, the reconciliation of native title and sovereignty

occurs in the recognition of sovereignty as a power to extinguish native title by

22 In dealings between Government and Aboriginal people, the “honour of the Crown” is at stake:

Delgamuukw at [186], similarly Van der Peet at [35]; Mitchell v MNR at [9]. In New Zealand Maori

Council v Attorney-General [1994] 1 NZLR 513, 517 the Privy Council sourced the fiduciary duty

directly in sovereignty: “in return for being recognised as the legitimate government of the whole

nation by Maori”. See generally Frame A, The Fiduciary Duties of the Crown to Maori: Will the

Canadian Remedy Travel? (2005) 13 Waikato L Rev 111. 23 Seminole Nation v United States 316 US 286 (1942) at 296-297: The US government, in dealing

with the Indians “has charged itself with moral obligations of the highest responsibility and trust”. 24 In Mabo only Toohey J considered that the Crown stood in a fiduciary relationship with the

native title holders. The power to destroy native title was so “extraordinary” that it was

appropriate for “equity to ensure that the position [of the Crown] is not abused”(at 203). 25 Mitchell v MNR at [10] per McLachlin CJ Gonthier, Iacobucci, Arbour and LeBel JJ: “aboriginal

interests and customary laws were presumed to survive the assertion of sovereignty, and were

absorbed into the common law as rights, unless (1) they were incompatible with the Crown's

assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the

government extinguished them.” 26 Bartlett RH, “The Content of Aboriginal Title and Equality before the Law” (1998) 61 Sask L Rev

377 [Equality before the Law] at 382: “reconciliation would have permitted impairment of pre-

existing rights in order to give full effect to Crown sovereignty.” 27 Symonds at 395 per Martin CJ.



page 37

purchase28 (extinguishment by consent) or clear and plain executive or legislative

act (non-consensual extinguishment).

28 The voluntary surrender of native title was the primary method of reconciliation: Haida Nation v

British Columbia (Minister of Forests) [2004] 3 SCR 511 at [25] per McLachlin CJ and Major,

Bastarache, Binnie, LeBel, Deschamps and Fish JJ: “Put simply, Canada's Aboriginal peoples were

here when Europeans came, and were never conquered. Many bands reconciled their claims with

the sovereignty of the Crown through negotiated treaties.”



page 38


native title

The settlement doctrine was applied to the Australian Colonies, introducing

English law to the exclusion of Aboriginal law. Mabo held that English law

recognised and protected the property rights to land of Aboriginal people.

English law became the law of the land, in part, to prevent a “failure of justice”,

for unless English law applied: “any injury … done there by any of the King’s

officers would have been altogether without redress” ,29 part of the larger

rationale to extend the benefits of civilisation, including the rule of law, to the

colonised.30

(a) Introduction of English law

The reconciliation of two distinct systems of law under the one sovereign is non-

problematic from a jurisprudential point of view. 31 In Canada, New Zealand and

Australia, imperial legislation introduced English law or confirmed its prior

introduction,32 effectively rendering otiose the question of whether English law

had been introduced by the assertion of sovereignty. The question of whether the

statutes governing the Australian Colonies were “confirmatory”,33 or introduced

English law again has not been resolved.34 There is no judicial decision applying

a settled colony doctrine to Canada or New Zealand. According to academic

opinion and colonial policy, sovereignty over Canada was acquired by a

29 Mostyn v Fabrigas (1774) 1 Cowp 161 (KB) at 181 Lord Mansfield held that English law applied to

Labrador, there being “no local Courts among the Esquimaux Indians upon that part of the

Labrador coast; and therefore whatever any injury had been done there by any of the King’s

officers would have been altogether without redress.” To deny jurisdiction “would be a failure of

justice, for it was on the coast of Nova Scotia, where there were no regular Courts” (at 180). 30 Lord Russell Despatch 62 to Gipps 21 December 1839 1 HRA (ser I) at 440: “it is impossible that

the Government should forget that the original aggression was our own, and that we have never

yet performed the sacred duty of making any systematic or considerable attempt to impart to the

former occupiers of New South Wales the blessings of Christianity, or the knowledge of the Arts

and advantages of civilised life”. 31 Legal pluralism is generally defined as a situation in which two or more legal systems coexist in

the same area: Griffiths J, “What is legal pluralism?” (1986) 24 J Legal Pluralism 1. If the law finder

and law content are part of one system, this is generally called a mixed system: Tetley W, “Mixed

Jurisdictions: Common Law vs Civil Law” (1999) 4 Uniform L Rev (Part 1) 591 at 592: “mixed

jurisdictions include Louisiana, Québec, …South Africa, ... and Scotland”. 32 Canada various dates: eg The Constitutional Act of 1791 (UK), 31 George III c.31, for Ontario; see

Cote J, “Introduction of English Law into Alberta” (1964) 3 Alberta LR 262 at 263; New Zealand:

English Laws Act 1858 (NZ), section 1, retrospectively declared that English law applied in New

Zealand from 14 January 1840. New South Wales, Tasmania, Victoria and Queensland: Australian

Courts Act 1828 (UK), 9 Geo IV c83, s. 24 stated that, from the date of assent (25 July 1828): “all laws

and statutes in force within the realm of England at the time of the passing of it, shall be applied in

the administration of justice in the courts of New South Wales so far as the same can be applied.”

The relevant dates are 1 June 1829 for Western Australia: Interpretation Act 1984 (WA), s 73; 28

December 1836 for South Australia; s 3 of Act No. 9 of 1872 (SA) and the Northern Territory 22

September 1863; Sources of Laws Act 1981 (NT). 33 Dugan v Mirror Newspapers (1978) 142 CLR 583 at 587. 34 Various views were expressed in Quan Yick v Hinds (1905) 2 CLR 345; Delohery v Permanent

Trustee Co of NSW (1904) 1 CLR 283; Mitchell v Scales (1907) 5 CLR 405.



page 39

combination of cession from France under the Treaty of Paris, and settlement,35

and notwithstanding the Treaty of Waitangi, sovereignty over New Zealand is

generally accepted to have been acquired by settlement.36

(i) Acquisition of sovereignty by settlement

Blackstone stated that in colonies acquired by settlement a necessarily modified

English law was introduced:

all the English laws then in being, which are the birthright of every subject,

are immediately there in force. But this must be understood with very

many and very great restrictions. Such colonists carry with them only so

much of the English law, as is applicable to their own situation and the

condition of an infant colony.37

Although Blackstone’s statement was derived from previous dicta with respect to

truly uninhabited lands,38 English opinion prior to Blackstone had already

applied the settled colony doctrine to the American Colonies.39

(ii) USA: The discovery doctrine

It was the general view of 18th century American commentators, prior to the

Marshall trilogy, that sovereignty over the American colonies was acquired by

settlement.40 It was the general English view that sovereignty was acquired over

35 Cote J, “Introduction of English Law into Alberta” (1964) 3 Alberta LR 262. 36 McHugh Common Law at 422: “This initial designation of New Zealand as a settled colony was

never controverted by the Colonial Office and provided the basis for the constitutional

arrangements thenceforth made for the country”. 37 1 Blackstone Commentaries (4th ed, 1770) at 107. 1 Blackstone Commentaries (1st ed) at 104-5

simply reads: “all the English laws are immediately then in enforce. For as the law is the birthright

of every subject, so wherever they go they carry their laws with them”. The passage was further

embellished in Blackstone Commentaries (5th ed, 1775 at 107 which excluded laws that are “neither

necessary nor convenient”. 1 Blackstone Commentaries (9th ed) of 1783 at 107: “Such colonists carry

with them only so much of the English law as is applicable to their own situation and the condition

of an infant Colony; such, for instance, as the general rules of inheritance, and protection from

personal injuries. The artificial requirements and distinctions incident to the property of a great and

commercial people,… and a multitude of other provisions, are neither necessary nor convenient for

them, and therefore are not in force.” (footnotes omitted) 38 Blankard v Galdy (1693) 2 Salk 411: “an uninhabited country newly found out by English

subjects.” Privy Council Memorandum, set out in Case 15 – Anonymous (1722) 2 Peere Williams

75: “That if there be a new and uninhabited country found out by English subjects”. 39 The first opinion in 1720 declared that the common law of England was the common law of the

plantations. “Let an Englishman…go where he will, he carries as much of law and liberty with him

as the nature of things will bear.”: Chalmers G, Opinions of Eminent Lawyers on Various Points of

English Jurisprudence (London, Reed & Hunter, 1814) at 209. The second in 1729 dealt with statute

law in Maryland (ibid at 208). 40 Tucker St. G (ed), Commentaries: With Notes of Reference to the Constitution and Laws of the

Federal Government of the United States (Philadelphia: Birch and Small, 1803) at Appendix 429-30

considered the settlement doctrine applied. Chalmers G, Political Annals of the Present United

Colonies [1780] (facsimile, New York: Burt Franklin, 1968) at 28: “No conquest was ever attempted

over the aboriginal tribes of America: Their country was only considered as waste, because it was



page 40

the American Colonies by conquest,41 and therefore the common law did not

apply to these lands, although in every case commentators or courts declined to

say what law did apply. If the colonies were conquered colonies, there could be

no doubt about the answer under colonial constitutional law: pre-existing law

applied until altered by the king. In Johnson v McIntosh Marshall CJ fashioned a

new rule,42 better adapted to “the actual state of things”43 rather than follow

Blackstone. The Marshall trilogy held that sovereignty over the American

colonies was acquired under a doctrine of discovery, confirmed by subsequent

possession.44 As the wholesale introduction of English law would have offended

democratic sensibilities, American cases adopted a heavily qualified version of

the Blackstone formulation with respect to the modification of English law.45

(iii) Australia: settled colony doctrine applied

Subsequently to Blackstone, English jurisprudence made a further distinction

that was not part of settled colony doctrine as set out in Blackstone:

“uninhabited” lands included lands where the inhabitants were backward.46

uncultivated, and therefore open to the occupancy and use of other nations.…” (spelling

modernised). This does not imply that the settlement was peaceful: Williams RA, The American

Indian in Western Legal Thought: The Discourses of Conquest (New York: OUP, 1990) Chapter 5

English conquest of Virginia, 193–225. 41 Smith v Brown (1702-05) 2 Salk 666 per Holt CJ: “for the laws of England do not extend to

Virginia, being a conquered country their law is that the King pleases.” Similarly 1 Blackstone

Commentaries at 107: “Our American Plantations …being obtained…either by right of

conquest…or by treaties. And, therefore, the common law of England, as such, has no allowance or

authority there….” Similarly Chitty J, Prerogatives of the Crown (London: Butterworths, 1820)

[Chitty’s Prerogatives] at 29. In Penn v Lord Baltimore (1750) 1 Ves Sen 444 at 451, Lord Hardwicke

took a different view: America, was a land “uncultivated and possessed by barbarians,” and

sovereignty was acquired by the “European country” which “first set up marks of possession”. 42 This is the way that Marshall CJ's approach is perceived though, as indicated in the quotation

from Penn v Baltimore in footnote 41, this approach was not unprecedented. 43 Johnson v McIntosh at 573.. 44 Worcester v Georgia at 543-544: “Discovery … gave to the nation making the discovery…the sole

right of acquiring the soil … It regulated the right given by discovery among the European

discoverers, but could not affect the rights of those already in possession, either as aboriginal

occupants or as occupants by virtue of a discovery made before the memory of man. It gave the

exclusive right to purchase, but did not found that right on a denial of the right of the possessor to

sell.” Story J, Commentaries on the Constitution (Boston: Hilliard, Gray, & Co, 1833) [Story

Commentaries]: “§152. … Blackstone .. insists, that the American colonies are principally to be

deemed conquered, or ceded countries. §152. There is great reason to doubt the accuracy of this

statement in a legal view. … the European nations, by whom America was colonized,…claimed an

absolute dominion … not in virtue of any conquest of, or cession by the Indian natives; but as a

right acquired by discovery.” Similarly Kent J, Commentaries on American Law (New York: O

Halstead, 1826-30) [Kent Commentaries] Vol 3, at 308 to 313 45 Van Ness v Pacard 2 Pet 137, 144 (1829) per Story J: “The common law of England is not to be

taken in all respects to be that of America. Our ancestors brought with them its general principles,

and claimed it as their birthright; but they brought with them and adopted only that portion which

was applicable to their situation.”. Story Commentaries §148. “..they carry with them all the laws

applicable to their situation, and not repugnant to the local and political circumstances ...” 46 The process begins with Advocate-General of Bengal v Ranee Surnomoye Dossee (1863) 2 Moo

NS 22 at 59 per Lord Kingsdown: “Where Englishmen establish themselves in an uninhabited or

barbarous country”. Gibbs CJ in Coe v Commonwealth [1979] 53 ALJR 403 at 407 referred to “a



page 41

Thus New South Wales was considered to be “practically unoccupied, without

settled inhabitants or law”,47 allowing the new colony to be regarded as settled

by English subjects. Under this doctrine, appropriate English law was introduced

into the Australian Colonies.

Although the no-settled-law justification for the settled colony doctrine was

rejected in Mabo,48 the introduction of English law was re-affirmed. The High

Court did not offer a new legal principle to justify either New South Wales as a

settled colony, or the common law introduction of English law. The common law

introduction of English law is now a matter of established background.49

It has been argued that the distinction between conquest/cession and settlement

“is one of the reddest herrings in the scholarship of Aboriginal rights”.50 The

underlying argument is that native title rights owe their origin to the conduct of

the Crown after the assertion of sovereignty, and so the means by which

sovereignty was acquired is irrelevant.51 This approach does not account for

native title as the recognition of property rights pre-existing the assertion of

sovereignty. While the settled colony doctrine in Blackstone’s formulation does

not envisage the presence of a community of indigenous people, the doctrine as

later applied accepts the occupation of land by Aboriginal communities, and

does not deny common law rights flowing from their presence. However, in the

absence of a system of legal pluralism, the doctrine does deny pre-existing lex loci

continuing as “law”.52 Pre-existing rights can only continue as rights under the

introduced law.

colony acquired by settlement in a territory which, by European standards, had no civilized

inhabitants or settled law. Australia has always been regarded as belonging to the latter class”. 47 Cooper v Stuart (1889) 14 AC 286 at 291: “without settled inhabitants or settled law, at the time

when it was peacefully annexed to the British dominions”. 48 Mabo at 42 per Brennan J: “The fiction by which the rights and interests of indigenous inhabitants

in land were treated as non-existent was justified by a policy which has no place in the

contemporary law of this country”. 49 Yarmirr at [41] per Gleeson CJ, Gaudron, Gummow and Hayne JJ deal with the issue in one

sentence: “All members of the Court [in Mabo] accepted that on settlement of an Australian colony

the settlers brought the common law with them.” 50 McHugh Common Law at 402. 51 McHugh Common Law develops this thesis by reference to New Zealand and Canadian law.

This argument is made only by New Zealand and Canadian writers, relying on the history of

Crown dealings: eg Slattery B, “Understanding Aboriginal Rights” (1987) 66 Canadian Bar Rev 727,

[Slattery Understanding Aboriginal Rights] 737; similarly Cox N, “The Extension of the Common

Law to Settled, Ceded and Conquered Territories, and the Survival of Indigenous Laws”, Paper at

the ANZ Law and History Society Conference, U Waikato, July 2001. In Slattery B, “Making Sense

of Aboriginal and Treaty Rights” (2000) 79 Canadian Bar Rev 196 “The principal source of the

doctrine of aboriginal rights is an ancient body of inter-societal custom that emerged from relations

between British colonies and neighbouring Indian nations in eastern North America. 52 McHugh Common Law 426 argues that, in a territory “without a suitable lex loci”, English law

was introduced irrespective of conquest or settlement. Lester, not cited in McHugh, discusses all

the case law and texts discussed by McHugh to support this proposition, but comes to the opposite

conclusion: conquest meant continuing lex loci, without regard to suitability issues.



page 42

(b) English law is introduced and Aboriginal law is displaced

It can be accepted that at sovereignty, systems of Aboriginal law were in place.53

The effect of the settlement doctrine was to introduce a modified English law.

The question raised by the introduction of English law was whether it operated

to displace pre-existing law in all cases.

There is, of course, the air of absurdity about a proposition that, in February 1788,

the relevant law throughout the whole of the Colony of New South Wales

became English law54 and that it applied to determine legal rights and obligations

in all intra-Aboriginal disputes. However, Mabo holds that from the moment of

sovereignty, English law became the law of the Australian colonies,55 and the

only legal rights were those recognized by English law. The possibility of some

form of legal pluralism,56 while acknowledged in early Australian case law, 57 was

rejected. The jurisprudence of Australia,58 Canada59 and New Zealand60 have all

rejected any notion of Aboriginal law continuing as “law”.61

53 Milirrpum at 267: “[T]he social rules and customs of the plaintiffs …shows a subtle and elaborate

system highly adapted to the country in which the people led their lives, which ... was remarkably

free from the vagaries of personal whim or influence. If ever a system could be called `a

government of laws, and not of men', it is that shown in the evidence before me.” 54 Worcester v Georgia at 544-545: “[T]he King granted charters to companies of his subjects …

They purport, generally, to convey the soil from the Atlantic to the South Sea. ... The extravagant

and absurd idea that the feeble settlements made on the sea coast, or the companies under whom

they were made, acquired legitimate power by them to govern the people, or occupy the lands

from sea to sea did not enter the mind of any man.” 55 Mabo at 37 per Brennan J: “In a settled colony in inhabited territory, the law of England was not

merely the personal law of the English colonists; it became the law of the land, protecting and

binding colonists and indigenous inhabitants alike and equally.” See also footnote 18. 56 Forms of legal pluralism were the norm in conquered and ceded colonies: see Griffiths op cit, and

Hooker MB, Legal Pluralism: an Introduction to Colonial and Neo-Colonial Law (Oxford:

Clarendon Press 1975). 57 There are early instances where Australian courts did not apply English law to actions between

aboriginal people, even aboriginal people from different groups: R v Ballard (1829)

<http://www.law.mq.edu.au/scnsw> per Forbes CJ: “ I know of no principle of municipal or

national law, which shall subject the inhabitants of a newly found country, to the operation of the

laws of the finders, in matters of dispute, injury, or aggression between themselves” and per

Dowling J: “ until the aboriginal natives of this country shall consent … to the interposition of our

laws …for acts committed by themselves upon themselves, I know of no reason human, or divine,

which ought justify us in interfering with their institutions even if such interference were

practicable”. Similarly R v Bonjon [1841] (1998) 3 AILR 417 at 425 per Willis J; Kercher B, “R v

Ballard, R v Murrell and R v Bonjon” (1998) 3 AILR 410. Lendrum S, “The Coorong Massacre:

Martial Law and the Aborigines at First Settlement” (1977) 6 Adelaide L Rev 26, refers to similar

decisions by Cooper J of the South Australian Supreme Court in 1840. 58 R v Murrell (1836) 1 Legge 72 (SCNSW); similarly R v We-War (1842) Quarter Sessions, WA

<http://www.austlii.edu.au/au/other/NSWSupC/1842/1.html>; Hunter A, “The Boundaries of

Colonial Criminal Law in Relation to Inter-Aboriginal Conflict ('Inter Se Offences') in Western

Australia in the 1830s-1840s” (2004) 8 Aust J Legal History 215. 59 R v Williams [1995] 2 CNLR 229 (BCCA): “After [the colony of British Columbia was formed in

1858] Aboriginal customs, to the extent they could be described as laws before the creation of the

colony ... ceased to have any force, as laws, within the colony.” 60 In New Zealand some Maori law was recognized on a legislative basis, the first being the Native

Exemption Ordinance 1844 (NZ). The Resident Magistrates Act 1867 (NZ) provided that in disputes

involving only Mäori, the Magistrate was to be assisted by two Mäori chiefs as Native Assessors,



page 43

The introduction of English law did not thereby give the courts in England

jurisdiction to deal with all matters arising within colonies. Only the King in

Council, and therefore the judicial committee of the Privy Council, had this

jurisdiction. In settled colonies, Supreme Courts were set up with jurisdiction to

deal with all matters arising under the introduced law.62

(c) The Continuity Doctrine: pre-existing rights continue as the common law

right of native title

As there is only one law in Australia, “rights” under traditional law can only

continue as rights to the extent Australian law recognizes them. 63 English law,

adapted to the conditions of the infant colony, recognized native title, because

the common law contained a continuity doctrine which dictated the immediate

translation of pre-existing rights to land into the common law right of native

title.64 Therefore Privy Council, Canadian, New Zealand and US jurisprudence all

hold that interests in land pre-existing the acquisition of sovereignty, and

introduction of English law, are recognised by the introduced law, without the

need for Crown recognition of those rights.65 An alternative theory, the need for

express recognition of pre-existing rights – the recognition doctrine –has been

rejected.66 Australian jurisprudence has adopted the continuity doctrine:67

with the case to be determined according to equity and good conscience: Law Commission, Study

Paper 9 op cit. 61 Canadian jurisprudence sees Aboriginal rights as rights “incorporated” into the common law,

thus Mitchell v MNR at [61] per McLachlin CJ Gonthier, Iacobucci, Arbour and LeBel JJ: “This

argument [recognition of an Aboriginal right to international trade] finds its source in the doctrine

of continuity, which governed the absorption of aboriginal laws and customs into the new legal

regime upon the assertion of Crown sovereignty over the region. As discussed above, this

incorporation of local laws and customs into the common law was subject to an exception for those

interests that were inconsistent with the sovereignty of the new regime.” 62 While the New South Wales Court Act 1787 (UK), 27 Geo III c.2 created a court of criminal

jurisdiction, the 1787 Letters Patent purported to confer authority to set up civil courts. A Supreme

Court with civil jurisdiction was set up immediately, and later validated by the New South Wales

Act 1823 (UK), 4 Geo IV c.96. 63 Mabo at 59, 61 per Brennan J; Wik at 237-238 per Kirby J; Yarmirr at [175] per McHugh J (diss):

Mabo “did not create a dual system of laws. Rights and interests possessed under the traditional

laws or customs of the Aboriginal peoples and Torres Strait Islanders are not per se enforceable

under the Australian legal system. They are enforceable only to the extent that the common law or

statute recognises and gives effect to them”. 64 Why the continuity doctrine does not similarly treat the translation of aboriginal rights generally

into common law rights remains unresolved in Australian jurisprudence. 65 US: Sante Fe at 347; New Zealand: Symonds at 390-91; Canada: St Catherine's at 58, Guerin at 377-

78; PC (African Cases) Re Southern Rhodesia at 234; Amodu Tijani [1921] 2 AC 399 at 404 66 Most writers argued that the continuity doctrine was the better approach: Slattery Thesis 50-59;

McNeil K, Common Law Aboriginal Title (Oxford: Clarendon Press, 1989) [McNeil Common Law]

162-179. 67 Yarmirr per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [41]: “native title rights and

interests survived acquisition of sovereignty and .. an express act of recognition by the new

Sovereign was not necessary”. Similarly Mabo at 57 per Brennan J; 97-98 per Deane and Gaudron JJ;

182-83 per Toohey J.



page 44

However, a line of authority represented by In re Southern Rhodesia68, Amodu

Tijani, Guerin, Calder and Delgamuukw is more persuasive and should be

followed. This so called doctrine of continuity was exemplified by Lord

Sumner in the Privy Council in In re Southern Rhodesia:

“(U)pon a conquest it is to be presumed, in the absence of express

confiscation or of subsequent expropriatory legislation, that the

conqueror has respected (private property rights) and forborne to

diminish or modify them”.69 (full citations omitted)

While the introduction of English law is often seen as an expression of “tender

concern”70 for English settlers, a decision to introduce English law is also a

decision to protect the rights of Aboriginal people as common law rights, rights

arising under the former lex loci no longer being enforceable against the Crown,

or its servants.71 A decision to apply English law to a colony is a decision to

afford the protection of the law equally to all inhabitants.72 This protection is the

full protection of all appropriate English law.73 In the absence of legislative

alteration, the colonial Crown “possesses the same prerogative and the same

powers of government that it does over its other subjects”74 in England.

(d) English law, modified to fully respect native title, becomes Australian

law

A notion of full respect for native title is embodied in the acquisition of

sovereignty, and subsequent introduction of English law. Full respect therefore

precedes and shapes the basis on which English law was introduced. The

68 In Re Southern Rhodesia [1919] AC 211. 69 Mabo at 183-184 per Toohey J. 70 Mabo at 35 per Brennan J: “The tender concern of the common law of England for British settlers

in foreign parts led to the recognition that such settlers should be regarded as living under the law

of England if the local law was unsuitable for Christian Europeans”. 71 See Mostyn v Fabrigas cited footnote 29. 72 Campbell v Hall (1774) 1 Cowp 204 at 208: “the law and legislative government of every

dominion, equally affects all persons and all property within the limits thereof; and is the rule of

decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself

under the law of the place. An Englishman in Ireland, Minorca, the Isle of Man, or the plantations,

has no privilege distinct from the natives.” Similarly Mabo at 37 per Brennan J. 73 Henderson J, “Mikmaw Tenure in Atlantic Canada” (1995) 18 Dal LJ 196 at 198: “The Míkmaw

Compact, the inherited British Statutes of Frauds [1677], the 1761 Instructions [to Governors], and

the 1763 Proclamation [all] protected the Aboriginal “lands, Liberties and properties” from any

new settlements, interference or encroachment by colonial legislative assemblies, executive council,

and the colonialists.” (footnotes omitted). Mabo at 39 per Brennan J: “ [i]t would be a curious

doctrine to propound today that, when the benefit of the common law was first extended to Her

Majesty’s indigenous subjects in the Antipodes, its first fruits were to strip them of their right to

occupy their ancestral lands.” 74 Kielley v Carson (1842) 4 Moo PC 63, 84: “To such a colony… the settlers from the mother-

country carried with them … the same laws and the same rights, unless they have been altered by

parliament; and on the other hand, the Crown possesses the same prerogative and the same powers

of government that it does over its other subjects”.



page 45

settlement doctrine dictated that only suitably modified English law was

received into the Australian Colonies:

the common law which the settlers brought with them was ..”only so much

of it ... as was ‘reasonably applicable to the circumstances of the Colony’”.

That rule was itself a common law rule and the Crown had no prerogative

right to override the common law by executive act.75 (citations omitted)

The common law is “the ultimate constitutional foundation in Australia”.76 Mabo

held that the introduced law did not contain a doctrine of absolute Crown

ownership of land, and did contain a doctrine of native title. Respect for pre-

existing rights, as common law rights, underlies the way the entire English law of

property (including the doctrine of tenure and the doctrine of estates) was

received into the Australian colonies as Australian law.

By legal fiction, the Crown in England possessed absolute ownership of land

(allodial title) and from its allodial title granted lesser interests, such as the estate

in fee simple. 77 The fiction of Crown allodial title is not applicable to the

circumstances of a colony with pre-colonial inhabitants: it is inconsistent with the

basis on which colonial sovereignty was required, with the continuity doctrine,

and with the common law principle of equality before the law, 78 in denying pre-

colonial inhabitants their property rights. Absolute Crown ownership cannot

exist by fiction in Australia, Canada, New Zealand or the USA and this is what

the jurisprudence has held.79 If the Crown is to grant an interest out of its allodial

title, the Crown must first acquire allodial title. As the New Zealand Court of

Appeal stated:

starting with the English common law, unmodified by New Zealand

conditions (including Maori customary proprietary interests) [is an]

…error.80

This is because, from the outset:

75 Yarmirr at [41] per Gleeson CJ, Gaudron, Gummow and Hayne JJ citing Blackstone

Commentaries and Mabo. Roberts-Wray op cit at 626: “when English law is in force in a Colony,

either because it is imported by settlers or because it is introduced by legislation, it is to be applied

subject to local circumstances; and, in consequence, English laws which are to be explained merely

by English social or political conditions have no operation in a Colony.” 76 Gummow J in Wik at 182: “To the extent that the common law is to be understood as the ultimate

constitutional foundation in Australia, there was [as a result of Mabo] a perceptible shift in that

foundation, away from what had been understood at federation.” 77 The holder of allodial title does not receive ownership by grant out of a superior or larger

interest. The holder of allodial title does not provide service to, or acknowledgement of, any

superior. In the absence of legislative infringement, it is an absolute and unqualified right to the

land. For a fuller discussion of allodial title, see §5.1(b) Allodial title. For the proposition that the

Crown in England has acquired allodial title by legal fiction, see §6.1(c) Acquisition of allodial title. 78 §3.3 The principle of equality before the law dictates the recognition of native title. 79 Mabo at 57-58 Brennan J; Chapter 2 - Comparative jurisprudence: native title as a property right. 80 Ngati Apa at [13] per Elias CJ.



page 46

[the] common law of New Zealand as applied in the courts differed from

the common law of England because it reflected local circumstances….In

British territories with native populations, the introduced common law

adapted to reflect local custom, including property rights. [And thus] …the

principle of respect for property rights [of the aboriginal occupants] until

they were lawfully extinguished was of general application.81

New Zealand law differed from English law as the latter did not recognise Maori

customary title.82 English law was modified to the extent that it was necessary to

recognize Maori title and Maori rights:

The common law as received in New Zealand was modified by recognised

Maori customary property interests. If any such custom is shown to give

interests in foreshore and seabed, there is no room for a contrary

presumption derived from English common law. The common law of New

Zealand is different.83

Thus Brennan J in Mabo accepted that native title was recognized even if

inconsistent with the common law. 84

The proposition that the Crown’s right to land does not disturb the “presumptive

title” of the inhabitants has been stated in Mabo85 and in Privy Council and

Canadian jurisprudence.86 The New Zealand Court of Appeal has stated:

Any presumption of the common law inconsistent with recognition of

customary property is displaced by the circumstances of New Zealand.87

A presumptive native title serves to counteract presumptions, assumptions and

fictions that the Crown has allodial title to colonial land. Australian law cannot

contain presumptions, assumptions and fictions inconsistent with the recognition

of native title.

(e) Native title includes rights unknown to the common law: a proposition

of full respect

81 Ngati Apa at [17] also [86] per Elias CJ, [183] per Tipping J. 82 Ngati Apa at [ 212] per Tipping J: “I have deliberately referred to the common law of

New Zealand in this context to distinguish it from the common law of England which of course

lacked any ingredient involving Maori customary title or land.” 83 Ngati Apa at [86] per Elias CJ. 84 Mabo at 59 per Brennan J: “The general principle that the common law will recognize a

customary title only if it be consistent with the common law is subject to an exception in favour of

traditional native title.” Similarly Van der Peet at [268] per McLachlin J (diss). 85 Mabo at 102 per Deane and Gaudron JJ: “As has been seen, the doctrine of presumptive common

law native title, which has long been recognized by the common law, is applicable to a settled

British Colony.” 86 Guerin at 378 set out in footnote 7. 87 Ngati Apa at [84] per Elias CJ: “Any presumption of the common law inconsistent with

recognition of customary property is displaced by the circumstances of New Zealand”.



page 47

In describing what pre-existing rights were recognized as native title, the judges

in Mabo used the expression “rights and interests” over 70 times. Section 223(1) of

the Native Title Act defines “native title” in terms of “communal group or

individual rights and interests”. The expression “rights and interests” is a

composite phrase,88 echoing the formula of “laws and customs”. This is part of

the perception of difference by reference to full respect. It is a recognition that

interests, rather than a narrower conception of rights, are what the common law

recognises and protects. The references to “rights and interests” under “laws and

customs” obviate the debate about whether a claim is a “right” under a “law”.89

In Mabo, Brennan J90 and Deane and Gaudron JJ and Toohey J all held that native

title included the recognition of rights and interests unknown to the common

law: rights not necessarily analogous to common law rights “are to be assumed

to be fully respected.”91 Comparative jurisprudence also holds that native title

includes the recognition of “rights and interests”,92 including those “unknown”

to the common law.93 Deane and Gaudron JJ, in asking themselves “What kinds

of pre-existing native interests were respected and protected by the common

law?” answered:

The courts will, their Lordships said “assume that the traditional interests

of the native inhabitants are to be so respected “even though those interests

are of a kind unknown to English law.” That approach is supported by

other authority and by compelling considerations of justice. It should be

accepted as correct. 94 (footnotes omitted)

To provide full respect for traditional interest that is being recognised, one begins

with the examination of traditional interest, not its common law expression.95

88 A composite phrase is given a composite meaning and it does not incorporate within it the sub-

definition of specific words. For example, R v Oxfordshire County Council: ex parte Sunningwell

Parish Council [2000] AC 335 at [37] per Lord Hoffmann: “As a matter of language, I think that

“sports and pastimes” is not two classes of activities but a single composite class which uses two

words in order to avoid arguments over whether an activity is a sport or a pastime. The law

constantly uses pairs of words in this way. There is no suggestion in native title jurisprudence to

date that “rights and interests” in s.223(1) of the Native Title Act is other than a composite term. 89 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 442 [Yorta] at [41]

per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “The Native Title Act refers to traditional laws

acknowledged and traditional customs observed. Taken as a whole, that expression, with its use of

“and” rather than “or”, obviates any need to distinguish between what is a matter of traditional

law and what is a matter of traditional custom.” 90 Mabo at 61 per Brennan J quoting Adeyinka Oyekan v Musendiku Adele. 91 Mabo at 85 per Deane and Gaudron JJ. 92 §2.2(a)(i) New Zealand: Maori title; §2.2(a)(ii) Canada: Aboriginal title; §2.3 Aboriginal rights. 93 Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR at 880: “even though those interests are of a

kind unknown to English law”; Sunmonu v Disu Raphael [1927] AC 881 at 883-884; Sakariyawo

Oshodi v Moriamo Dakolo [1930] AC 667 at 668-669 94 Mabo at 85 per Deane and Gaudron JJ. 95 Ward at [94] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “There is much scope for error if

the examination begins from the common law expression of those rights and interests. Especially is

that so if a portmanteau expression used to translate those rights and interests”.



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Yorta96 held that both Mabo and the Native Title Act proceeded from the basis that

“rights and interests” under traditional laws and customs “may not, and often

will not, correspond with [common law] rights and interests”.97 What is to be

respected is not limited to conceptions of either “property” or “real property”.98

(f) Conclusion

The continuity doctrine is the explanation of what happened to pre-colonial

property rights after sovereignty. On the basis that they were to be fully

respected, they became common law rights under Australian law. Those rights

are enjoyed “in exactly the same way as the law would protect other

Australians”.99

96 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 442. 97 Yorta at [40] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; similarly Yarmirr at [13]. 98 Yarmirr at [12] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “Those rights and interests

may have some or all of the features which a common lawyer might recognise as a species of

property. Neither the use of the word “title” nor the fact that the rights and interests include some

rights and interests in relation to land should, however, be seen as necessarily requiring

identification of the rights and interests as what the common law traditionally recognised as items

of “real property”. Still less …to constitute “property”.” 99 Wik at 251 per Kirby J.



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title

The idea of equality before the law has a long history in legal reasoning100 and

courts regularly refer to “the principle of equality before the law”.101 Equality

means freedom from discrimination.102 However, the “common law guarantees

equality before the law but does not … prevent discrimination in the enactment

of laws”. 103 In Mabo, Brennan J stated that the common law principle of equality

before the law dictated the recognition of native title. In Mabo 1 the High Court

held that the singling out of native title for legislative extinguishment offended

the statutory principle of equality before the law that was contained in s.10 of the

Racial Discrimination Act 1975 (Cwth) [RDA], in denying the Meriam people their

human right/legal right to own and inherit property rights to land.104 These two

propositions, examined in this section, show that native title is respected as a

property right, and that a doctrine of absolute Crown ownership of land (which

axiomatically denies full respect to native title) is not part of Australian law

because it is inconsistent with the common law principle of equality before the

law, in denying only native title holders the enjoyment of their property rights. 105

(a) The doctrine of absolute Crown ownership as a denial of the common

law principle of equality before the law

In Mabo, the common law principle of equality before the law was used by

Brennan J as the justification to reject the authority of cases which had

100 The idea is usually traced to Aristotle, Nicomachean Ethics, trans WD Ross (Oxford, Clarendon

Press 1908) (Book V): “Injustice arises when equals are treated unequally and also when unequals

are treated equally.” Westen P, Speaking of Equality: An Analysis of the Rhetorical Force of

'Equality' in Moral and Legal Discourse (Princeton: Princeton University Press, 1990) discusses the

complexity and potential confusion in various egalitarian norms. 101 Matadeen v Pointu [1999] 1 AC 98 (PC) at 108: “The principle that equality before the law

requires persons to be uniformly treated, unless there is some valid reason to treat them differently,

is one of the building blocks of democracy and necessarily permeates any democratic Constitution.

Indeed their Lordships would go further and say that treating like cases alike and unlike cases

differently is a general axiom of rational behaviour”. Ward at [575] per Kirby J: “the principle of

equality of the rights of all Australians before the law”. Maciantonio v Queen (1994) 183 CLR 58 at

73 per McHugh J. Fingleton v R (2005) 216 ALR 474 at [168] per Kirby J : “In the event of a real

doubt, legislation will normally be construed so as to uphold such equality and to confine the

immunity. This follows on the assumption that, had the legislature intended to depart from such an

interpretation, it would have said so in plain terms. This principle is but one instance of the general

approach of the courts to construe statutes favourably to the observance of fundamental rights and

duties, of which equality before the law is one.” 102 A v Secretary of State for the Home Department [2003] 2 WLR 564 (HL) at [7]: ‘‘the right not to

be discriminated against is one of the most significant requirements of the rule of law “. 103 Choudhury T and Moon G, “Complying With Its International Human Rights Obligations: The

United Kingdom and Article 26” [2003] EHRLR 283 at 286. 104 Mabo 1 at 218 per Brennan, Toohey and Gaudron JJ. 105 The argument that the recognition of native title is a manifestation of the principle of equality

before the law has previously been made: Bartlett Equality before the Law op cit; similarly Bartlett

RH, “Native Title: From Pragmatism to Equality Before the Law’ (1995) 20 Melbourne ULR 282.



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established the “doctrine of exclusive Crown ownership of all land in the

Australian colonies”:106

Judged by any civilized standard, such a law is unjust …107

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. .. Moreover, to reject the theory that the Crown acquired

absolute beneficial ownership of land is to bring the law into conformity

with Australian history.108

The theory of absolute Crown ownership depended on a “discriminatory

denigration of indigenous inhabitants, their social organization and customs”,109

in denying that Aboriginal people were socially sophisticated enough to have

conceptions of laws or property rights. The basis of the theory was “false in fact

and unacceptable in our society”.110

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 organization of the indigenous

inhabitants of a settled colony, denies them a right to occupy their

traditional lands.111

A doctrine of absolute Crown ownership by the acquisition of sovereignty denies

only native title holders enjoyment of their common law rights in land, and

therefore denies native title holders the equal enjoyment of their rights under

Australian law. Accordingly, the fictional presumption of Crown allodial title did

not form part of Australian law. This means two things: allodial title must be

acquired, and while Crown ownership of land may be recognized against

persons who derive their interests from Crown grant, there cannot be fictional

Crown ownership of land against native title holders. Comparative jurisprudence

has made this point clear:

It seems to flow from the very terms in which the principle, “that the

Queen is the only source of title” … [is expressed that] notwithstanding the

rights of the native race, and of course subject to such rights, the Crown, as

against its own subjects, had the full and absolute dominion over the soil,

as a necessary consequence of territorial jurisdiction.112

106 Mabo at 28. Cases set out in Chapter 1 footnote 2. 107 Mabo at 29-30. 108 Mabo at 57-58. 109 Mabo at 40. 110 Mabo at 40. 111 Mabo at 42. 112 Symonds at 390-91 per Chapman J.



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The existence of native title does not deny the relevance of the doctrine of tenure

to explain the meaning of rights held under Crown grant, as between the Crown

and the grantee. But native title makes unsuitable the fictional assumption of

Crown allodial title against native title holders, against those not deriving their

rights to land by Crown grant.

Native title holders have common law rights to land by reason of the continuity

doctrine, which recognizes pre-sovereign rights as post-sovereign common law

rights. To adopt the fiction of absolute Crown ownership (allodial title) is to deny

“the equality of all Australian citizens before the law”, in denying only native

title holders their common law rights to land.

(b) Denial of native title as a denial of the right to enjoy property contrary to

the guarantee of equality before the law in the RDA

In Mabo 1 the High Court looked at whether the legislative extinguishment of

native title offended the principle of equality before the law, as contained in s.10

of the RDA :

(1) If, by reason of, or of a provision of, a law … persons of a particular

race, colour or national or ethnic origin do not enjoy a right that is

enjoyed by persons of another race, colour or national or ethnic

origin, or enjoy a right to a more limited extent than persons of

another race, colour or national or ethnic origin, then,

notwithstanding anything in that law, persons of the first-mentioned

race, colour or national or ethnic origin shall, by force of this section,

enjoy that right to the same extent as persons of that other race,

colour or national or ethnic origin.

(2) A reference in sub-section (1) to a right includes a reference to a right

of a kind referred to in Article 5 of the [International Convention on

the Elimination of All Forms of Racial Discrimination].

Article 5 states:

States Parties undertake to prohibit and to eliminate racial discrimination

in …. the enjoyment of the following rights:…

(v) The right to own property alone as well as in association with

others;

(vi) The right to inherit …

The Queensland Coast Islands Declaratory Act 1985 (Qld) provided:

3. …upon the islands being annexed to and becoming part of

Queensland…



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(a) the islands were vested in the Crown in right of Queensland

freed from all other rights, interests and claims of any kind

whatsoever and became waste lands of the Crown ..;

(c) the islands could thereafter be dealt with as Crown lands for

the purposes of Crown lands legislation ….

5. No compensation was or is payable … (b) in respect of any right,

interest or claim alleged to have existed prior to the annexation of the

islands to Queensland or in respect of any right, interest or claim

alleged to derive from such a right, interest or claim…

Section 3 of the Queensland Act provided a clear and plain intention to vest a

title to the islands in Queensland, and to extinguish native title, and s.5 provided

a clear and plain intention to deny compensation for the extinguishment of

native title. This is the way the High Court interpreted the legislation. Wilson J

held that the Queensland Act was valid to effect this purpose. The majority held

that the effect of the Queensland Act was to deny equality before the law to the

Miriam people with respect to their right to own or inherit property, and was

therefore discriminatory and inconsistent with the RDA and invalid by reason of

that inconsistency pursuant to the “inconsistency of laws” test, set out in s.109113

of the Constitution.114 Brennan, Toohey and Gaudron JJ described the matter

thus:

The question which s.10 poses in the present case is whether, under our

municipal law, the Miriam people enjoy the human right to own and

inherit property - a right which includes an immunity from arbitrary

deprivation of property - to a more limited extent than other members of

the community. (“Property” in this context must embrace rights of any

kind in or over the Murray Islands.) …A person who is a member of the

Miriam people is entitled to own and inherit those property rights in the

same way and to the same extent as any other Australian. ...

But the 1985 Act destroys the traditional legal rights in and over the

Murray Islands possessed by the Miriam people (and particularly by the

plaintiffs) and, by an arbitrary deprivation of that property, limits their

enjoyment of the human right to own and inherit it.115

As a result of the Queensland Act, the Miriam people enjoyed their right to own

and inherit property to a more limited extent than others enjoyed the same right.

113 Section 109 provides: “When law of a State is inconsistent with the law of the Commonwealth,

the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” Mabo 1

at 214 per Brennan, Toohey and Gaudron JJ: “The next question is whether the 1985 Act is

inconsistent with the Racial Discrimination Act and is therefore ineffective by reason of s.109 of the

Constitution.” 114 The Australian Constitution is clause 9 of the Commonwealth of Australia Constitution Act 1900

(UK). 115 Mabo 1 at 218 per Brennan, Toohey and Gaudron JJ; similarly Deane J at 230-231: The

Queensland Act extinguished “only traditional proprietary rights”.



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They were, in the classic phrase of discrimination jurisprudence, “singled out”,116

and “arbitrarily deprived” of their property right.

Subsequently in the Native Title Act Case117 the High Court ruled that the State

Land (Titles and Traditional Usage) Act 1993 (WA) was invalid as it was

inconsistent with the RDA in denying equality before the law. The WA Act

extinguished native title and replaced it with statutory “rights of traditional

usage” under s.7. The question before the Court was whether the statutory rights

conferred by s.7 ensured “the same security of possession and enjoyment”118 as

native title rights protected by the RDA. The statutory rights did not, as they

could be more easily diminished under WA legislation than native title.119 Both

Mabo 1 and the Native Title Act Case involved legislative discrimination contrary

to the guarantee of equality before the law in the RDA. In both cases only rights

possessed by native title holders were extinguished or diminished.

(c) The dictates of substantive equality

One foundation of the recognition of native title is that it reflects principles of

both formal and substantive equality before the law, conceptions which do not

completely parallel the distinction between the common law principle of equality

before the law, and the principle of equality embodied in the RDA. The concept

of substantive equality addresses factual difference.

(i) Formal equality and substantive equality

Formal equality

Formal equality means treating each person or thing the same, regardless of any

difference in that person’s or thing’s relevant circumstances. It is a narrow

conception, applicable to situations where the people or things being compared

are, in relevant terms, similar. The primary application of formal equality is as a

rule of consistency (or lack of arbitrariness) in the application of a given rule or

principle. Formal equality does not offer a view as to whether a rule offends

wider conceptions of justice. The common law principle of equality before the

law is generally interpreted as a rule of formal equality.

[The reach of equality] is limited because its primary concern is not with

the content of the law but with its enforcement and application alone. The

116Mabo 1 at 231 per Deane J. 117 Western Australia v Commonwealth (1995) 183 CLR 373 [Native Title Act Case] 118 Native Title Act Case at 440 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ. 119 Native Title Act Case at 437 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ:

“If a law of a State provides that property held by members of the community generally may not be

expropriated except for prescribed purposes or on prescribed conditions (including the payment of

compensation), a State law which purports to authorise expropriation of property characteristically

held by the 'persons of a particular race' for purposes additional to those generally justifying

expropriation or on less stringent conditions (including lesser compensation) is inconsistent with

s 10(1) of the [RDA].”



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Rule of Law is satisfied as long as laws are applied or enforced equally, that

is, even-handedly, free from bias and without irrational distinction. The

rule of law requires formal equality which prohibits laws from being

enforced unequally, but it does not require substantive equality. .. It

constrains, say, racially-biased enforcement of laws…120

The use of the common law principle of equality in Mabo to deny the existence of

a common law doctrine of absolute Crown ownership is the invoking of a

conception of equality going beyond the formal equality.

Substantive equality

Formal equality has limited application when the things being compared are

different:

To treat unequal matters differently…is not only permitted but required .

The issue is whether the difference exists. Accordingly, not every different

treatment can be justified by the existence of differences, but only such as

corresponds to the differences themselves, namely that which is called for

by the idea of justice.121

What substantive equality requires has two aspects: that things not be treated

differently under the guise of a rule which purports to apply to all, but in fact

singles out only the rights of a few; and that things not be treated differently on

the basis of an arbitrary or invidious distinction.

Infringing substantive equality by singling out native title

Having determined equality of treatment is justified, substantive equality looks

beyond legal form to the actual effect of laws on persons and their rights.122 One

indication that substantive equality may be denied is a law that “applies” to all,

but affects only the rights of a small section of the community.123 Immediately

following the acquisition of sovereignty and commencement of Australian law,

only native title holders had rights in land under Australian law. A common law

doctrine, or legislation, extinguishing all legal rights in land at or immediately

after sovereignty can be argued to fall within a conception of formal equality.124

However, such a doctrine or law affects only the rights of native title holders, it

120 Jowell J, "Is Equality a Constitutional Principle?" (1994) 47 CLP 1 at 4. 121 South West Africa Case (Second Phase) (ICJ Reports, 1966) at 305-6, quoted by Brennan J in

Gerhardy v Brown (1985) 159 CLR 70 at 129. 122 Macklem P, Indigenous Difference and the Constitution of Canada (Toronto: University of

Toronto Press, 2001) at 126. 123 Vanzant v Waddel 10 Tenn (2 Yet) 260, 269 (1829): “intended to affect particular individuals

alone, or to deprive them of the benefit of the general laws … to deprive a corporation or an

individual of rights …to the equal benefits of the general and public laws of the land”. Lehman v

McBride 15 Ohio St 573, 606-07 (1863) legislation in which “operation is limited to . . . certain classes

of persons”. 124 This was the view of Wilson J in Mabo 1 at 206.



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“singles out”125 native title holders. The common law doctrine of absolute Crown

ownership, like the Queensland Act, denied only native title holders like

treatment in the enjoyment of their rights to own and inherit property:

the practical operation and effect of the [Queensland] Act would be to

extinguish only traditional proprietary rights and interests whose ultimate

source predated annexation while leaving intact rights and interests whose

ultimate source lay in the European law which became applicable upon

annexation.126

Infringing substantive equality by the making of arbitrary distinctions

A differentiation of treatment will not constitute discrimination if having regard

to the objectives and purposes of equality before the law, they are appropriate.

What is prohibited is arbitrary or invidious distinctions.127 Once one moves

beyond the narrow concept of formal equality as like treatment, it is necessary to

justify criteria by which to determine whether like or unlike treatment is

appropriate. Whether to equate the property right of native title to other property

rights or to common law conceptions of title or ownership, or whether to deny it

that equality, is examined in Chapter 4- The denial of full respect in the

conceptualisation of native title.

(ii) Native title as a property right protected by a principle of substantive equality

before the law

Native title is property right with a different content to a property right sourced

under the doctrine of tenure. However, with respect to the equality of treatment

of legal rights, and specifically the rights to own and inherit property, this

difference is not a relevant difference, and therefore not a basis for making a

distinction between native title and other property rights. In Ward the High Court

made the following point:

Because no basis is suggested in the Convention or in the RDA for

distinguishing between different types of property and inheritance rights,

the RDA must be taken to proceed on the basis that different characteristics

attaching to the ownership or inheritance of property by persons of a

particular race are irrelevant to the question whether the right of persons of

that race to own or inherit property is a right of the same kind as the right

to own or inherit property enjoyed by persons of another race....the Court

has rejected the argument that native title can be treated differently from

other forms of title because native title has different characteristics from

125Mabo 1 at 231 per Deane J: “The practical operation and effect the Act are to single the Torres

Strait Islanders (including the Miriam people) for discriminatory treatment in relation to traditional

proprietary rights and interests to and in their homelands”. 126Mabo 1 at 230-31 per Deane J. 127 Adarand Constructors Inc v Pena 515 US 200, 222 (1995) per Stevens J (diss) “Invidious

discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain

the power of the majority.”



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those other forms of title and derives from a different source. This

conclusion about the operation of the RDA should not now be revisited.128

The issue of substantive equality revolves around the question of whether

differences in treatment are relevant, whether they "can be justified by the

existence of differences [in the things] themselves",129 and whether the making

arbitrary or invidious distinctions is involved. The principle set out in Ward with

respect to itself the application of the guarantee of equality before the law under

the RDA is not a principle unique to the RDA but part of wider equality

conceptions contained in the common law principle of equality before the law

relied on in Mabo. What is required is that some aspect of the property right of

native title suggest a relevant basis for distinguishing “the right to own or inherit

property”, as enjoyed by all holders of property, from the same right as enjoyed

by native title holders. Australian jurisprudence has suggested that a relevant

distinction might lie in native title as a property right not sourced in actual or

presumed Crown grant. Whether native title enjoys an equality of treatment with

other common law rights is examined in Chapter 6 - The denial of full respect in the

extinguishment of native title.

(iii) Native title as a right enjoyed only by Aboriginal people?

Native title is not a right enjoyed only by Aboriginal people. A jurisprudence that

conditions the existence of a right on proof of Aboriginal authenticity can be

described as one involving rights that arise “from the fact that aboriginal people

are aboriginal”.130 This will be the case where the Crown has exercised executive

or legislative power, or engaged in a course of conduct, whereby it has

recognised or granted to Aboriginal peoples specific rights not conferred on non-

Aboriginal people. In Australia no such recognition of rights has taken place.

While the lex loci that pre-existed the imperial assertion of sovereignty was the lex

loci of a specific Aboriginal community, individuals from outside the community,

including non-Aboriginal persons, might acquire rights under that law.131 The

continuity doctrine dictates that all pre-sovereign rights with respect to land, of

both Aboriginal and non-Aboriginal people, were recognised by Australian law.

In order for native title rights to be recognized by Australian law, Aboriginal

communities must have remained connected to their traditional lands since

sovereignty, and must have observed their traditional laws and customs with

respect to that land. As native title recognises only rights and interests that have

survived 200 years of dispossession and assimilation, it follows that the majority

of Aboriginal people have no native title rights. Native title is possessed by only

128 Ward at [121] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 129 Brennan J in Gerhardy v Brown (text accompanying a footnote 119). 130 Van der Peet at [19] per Lamer CJ and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major

JJ. Slattery, Understanding Aboriginal Rights , at 776: rights held by “Indians qua Indians”. 131 There is no doubt that, post-sovereignty, Aboriginal individuals from outside the relevant

Aboriginal community, and non-Aboriginal individuals, can acquire rights and obligations under

traditional law. The transcript of Jango v Northern Territory records two instances of non-

Aboriginal right acquisition: [P2926-2928] and [P1610-1612].



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some Aboriginal people. Native title is not a right enjoyed by reason of

Aboriginality.

(d) Conclusion: equality before the law as a basis for the recognition of

native title

Native title is the recognition of rights shaped by Aboriginal difference. The

recognition of native title results, firstly, from the repudiation of the doctrine of

absolute Crown ownership because this doctrine denies substantive equality

before the law to native title holders in the enjoyment of their property rights,

and, secondly, from the acceptance of the continuity doctrine, that pre-existing

rights survived the acquisition of sovereignty as legal rights. Once the existence

of a right is determined, both the common law principle of equality before the

law and the RDA dictate an equal enjoyment of that right. Australian law holds

that native title, as a property right, cannot be treated differently to “other forms

of title” in the absence of some basis “distinguishing between different types of

property”.132

132 Ward at [121] per Gleeson CJ, Gaudron, Gummow and Hayne JJ see footnote 128.

Chapter 4: The denial of full respect in the conceptualisation of native title

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CHAPTER 4 - THE DENIAL OF FULL RESPECT IN THE CONCEPTUALISATION

OF NATIVE TITLE

______________________________________________________________________

A standard of full respect for pre-existing interests in land dictates that native

title, as a right under Australian law, is a meaningful form of title to land.

However, Australian jurisprudence has conceptualised native title rights as

lesser.

§4.1 Native title: the translation of traditional rights into common law rights

The task Australian jurisprudence has set itself is not the recognition of a

community’s effective assertion of exclusive occupation against the whole world,

but the process of translating into common law rights, rights and interests

perceived to exist under traditional law which connect the members of an

Aboriginal community to land. According to Australian jurisprudence, this task

involves three steps:

• Perceiving traditional rights and interests;

• Identifying those traditional rights and interests that exist in an intersection

between the traditional legal system and the Australian legal system, and

are observed and acknowledged today;

• Translating the rights and interests in the intersection into rights under

Australian law.


full respect

Before Australian law can translate traditional rights, it must be able to perceive

those rights. It must have a strategy to understand difference. This strategy is

embodied in the language of full respect. Australian jurisprudence looks to rights

and interests under a normative system (of traditional laws and customs), though

such rights and interests are not necessarily known to the common law, or

consistent with the common law. Australian jurisprudence attempts to perceive

traditional rights and interests, and give them meaning and weight, on the basis

of full respect for the Aboriginal perspective.

§4.3 The intersection between normative systems: the denial of full respect for

native title as a common law right

Native title is an attempt at reconciling two independent legal and social

traditions, and this reconciliation is located in the “intersection” between two

living systems: the Australian legal system and the Aboriginal normative system.

The intersection determines which traditional rights will be translated into rights

under Australian law in two ways. The first way is to affirm the primacy of the

common law perspective: traditional rights incapable of expression in common

law terms cannot be recognized as native title. Thus, what emerges from the


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intersection is, by definition, a common law right. However, the intersection

operates in a second way, to deny full respect to the common law expression of

traditional rights, by subjecting the translation process to a rhetoric that

contextualises native title as a subordinate common law right, in the form of

three newly created rules of right-recognition: a doctrine of acceptable custom;

the “skeletal principle”; and the complementary “antithetical rights” principle.

These principles of right recognition have resulted in traditional rights being

either denied common law recognition or being seen as lesser rights. Further, a

doctrine of frozen rights limits the content of native title as a living right.

§4.4 Native title: the failure to search for meaningful title

Full respect requires that once traditional rights are perceived to exist, they are to

be faithfully translated into the most apt common law right. Locating native title

within the common law tradition, rather than in a plural or mixed system of law,

means that the expression of the common law right of native title is guided by

common law conceptions of “property”, “title” and “ownership”. Comparative

jurisprudence has recognized the communal right to land as ownership or a

property right akin to ownership, and sees native title as a true form of title. By

contrast, Australian jurisprudence has fragmented the translation of the

traditional connection to land into a bundle of rights, and treated native “title” as

the accumulation of a series of individual rights to land.

§4.5 The denial of full respect: a conclusion

Full respect for native title as a form of right, title and ownership has been denied

in the way Australian jurisprudence has conceptualised native title. While

Australian jurisprudence adopts the language of full respect in the perception of

the traditional rights that are recognized as native title, the “intersection”

between the traditional normative system and the Australian legal system

contextualises native title as a lesser form of common law right. As a communal

right of exclusionary control, native title enters Australian law as a true form of

ownership and title. However, the language of difference, and the metaphor of

the bundle of rights, equates native title to a compromised form of ownership

and title. Even so, native title remains a series of property rights to land.


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§4.1 Native title: the translation of traditional rights into common law rights

The traditional legal system and the Australian legal system reflect different

conceptions of property, as well as different conceptions of rights and duties. The

task of Australian law is to translate traditional rights and interests connecting

the members of Aboriginal communities to land, into rights under Australian

law:

[The] relevant task [of Australian law], is to identify how rights and

interests possessed under traditional law and custom can properly find

expression in common law terms.1

A determination of native title is a determination of rights under Australian law.

Brennan J’s conceptualisation of native title in Mabo was affirmed by the High

Court,2 and incorporated into the Native Title Act.3 The key aspects are:

The term “native title” conveniently describes the interests and rights of

indigenous inhabitants in land, whether communal group or individual,

possessed under the traditional laws acknowledged by and the traditional

customs observed by the indigenous inhabitants. 4

Where a clan or group has continued to acknowledge the laws and (so far

as practicable) to observe the customs based on the traditions of that clan or

group, whereby their traditional connexion with the land has been

substantially maintained, the traditional community title of that clan or

group can be said to remain in existence.5

How is native title as a “title” to land to be reconciled with native title as the

translation of all communal, group and individual rights and interests into

common law rights? While comparative jurisprudence draws a distinction

between Aboriginal title and Aboriginal rights, Australian jurisprudence does

not coherently distinguish between “native title” and “native title rights”, with

the result that rights akin to ownership are spoken of as if they were as limited as

mere land use-rights, part of a bundle of undifferentiated rights.

(a) The initial translation: native title as communal ownership

The High Court in Mabo originally distinguished between “native title” as

communal ownership, and other “native title rights” not necessarily amounting

to ownership. The order of the Court in Mabo was that:

1 Yarmirr at [89] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 2 Fejo at 128 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 3 Native Title Act s.223, set out in §1.2 An overview of the Australian doctrine of native title 4 Mabo at 57 per Brennan J. 5 Mabo at 59-60.


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the Meriam people are entitled as against the whole world to possession,

occupation, use and enjoyment of [the relevant lands].6

In Mabo it was only the “Meriam people” who held the native title right, the

content of which was the right of exclusive possession. The various dicta by

Brennan J, Deane and Gaudron JJ and Toohey J, all envisaged that only the

community would be in exclusive possession of land, and this meant that

communal title was a proprietary interest in land. Individuals would have only

“usufructuary” interests and these interests did not form part of the native “title”

that Mabo recognized:

individual members of the community …enjoy only usufructuary rights …

Indeed, it is not possible to admit traditional usufructuary rights without

admitting a traditional proprietary community title.7

A usufructuary right is the right of “enjoying a thing, the property of which is

vested in another, … provided it be without altering the substance of the thing.”8

In Mabo Brennan J was clear: “indigenous people owned their land”.9 Deane and

Gaudron JJ also saw the communal right as capable of amounting to

“ownership”.10 Toohey J equated native title to fee simple ownership,11 an

approach Brennan J rejected.12 The Mason CJ was similarly clear in Mabo 1, native

title was a right to own land.13 Brennan J and Deane and Gaudron JJ14

distinguished between proprietary communal title to land, and individual

interests in that land under a system of living communal laws:

6 Mabo at 217: “putting to one side the …land leased to the Trustees of the Australian Board of

Missions and those parcels of land (if any) which have validly been appropriated for use for

administrative purposes the use of which is inconsistent with the continued enjoyment of the rights

and privileges of the Meriam people under native title, declare that the Meriam people are entitled

as against the whole world to possession, occupation, use and enjoyment of the lands of the

Murray Islands.” 7 Mabo at 51 per Brennan J 8 Bouvier J, A Law Dictionary (Philadelphia: Childs and Peterson, 1856). Mason v Tritton (1994) 34

NSWLR 572 at 581 per Kirby P: “The term ‘usufructuary right' …commonly conveys the

entitlement of an individual to use, and take benefit from, land belonging to another. … and a

‘usufructuary’ is a person who has the usufruct or right of enjoying anything in which he has no

proprietary interest.” 9 Mabo at 51: “It would be wrong, …by importing definitions of `property' which require

alienability under the municipal law of our society, to deny that the indigenous people owned their

land” (footnotes omitted). 10 Mabo at 88: “it may be a community title which is practically ‘equivalent to full ownership’”, and

at 89 native title may “approach the rights flowing from full ownership at common law.” 11 Toohey J at 214: it would be “no more beneficial for the plaintiffs to have possessory title to a fee

simple estate than to have native title.” 12 Mabo at 75: “As … native title is not a title created by grant nor is it a common law tenure, it may

be confusing to describe the title of the Meriam people as conferring “ownership”, a term which

connotes an estate in fee simple …Nevertheless, it is right to say that their native title is effective as

against the State of Queensland and as against the whole world…”. 13 Mabo 1 at 217-18 per Mason CJ: “the Miriam people enjoy their human right of the ownership

and inheritance of property”. 14 Mabo at 88 Deane and Gaudron JJ: “It may be an entitlement of an individual…to a limited

special use of land … In contrast, it may be a community title”.


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A communal native title enures for the benefit of the community as a whole

and for the sub-groups and individuals within it who have particular rights

and interests in the community's lands.15

Brennan J envisaged individual use rights as “dependent on the community

title”16 and no individual rights were recognized by the Court’s order. In Mabo,

the core of communal native title in its common law expression was exclusive

possession as against the whole world. Exclusive possession is the foundation for

common law notions of “title” and “ownership”.17

(b) The revised translation: native title as a bundle of rights

High Court discussion of native title as ownership did not survive Mabo,18 and

native title became a bundle of rights. The effect of this change was to create a

context in which Aboriginal communities ceased to be seen as owning their land,

and therefore the Crown did not have to acquire “ownership” or “title”, it merely

had to extinguish rights. The second effect of the bundle of rights approach was

that native title became only those individual rights that native title holders

could make out.

The Wik majority accepted that native title could be extinguished on the basis of

an inconsistency of rights test:

To say that the pastoral leases in question did not confer rights to exclusive

possession on the grantees ..[is] to recognise that the rights and obligations

of each grantee depend upon the terms of the grant of the pastoral lease

and upon the statute which authorised it. …If inconsistency is held to exist

between the rights and interests conferred by native title and the rights

conferred under the statutory grants, those rights and interests must yield,

to that extent, to the rights of the grantees. 19

15 Mabo at 61-62. 16 Mabo at 51: “there is no impediment to the recognition of individual non-proprietary rights that

are derived from the community's laws and customs and are dependent on the community title.”. 17 §4.4(c) Native title as title and ownership. 18 Native title is described as “communal ownership” only in Sampi v Western Australia [2005]

FCA 777 at [1069] and Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title

Claim Group [2005] FCAFC 135 at [79]-[80] in both cases by French J. In Ward Aboriginal

ownership of land was also left open. At [118] Gleeson CJ, Gaudron, Gummow and Hayne JJ state:

“The question which was posed by Dawson J in Mabo 1 of whether native title rights and interests

amount to rights of ownership equivalent to the rights of ownership enjoyed by others appears not

to have been specifically addressed in the joint judgment in that case.” They then affirm [119]-[121]

that there is no basis in the RDA to distinguish native title from other forms of property: see

§3.3(c)(ii) Native title as a property right protected by a principle of substantive equality before

the law. Similarly at [665] Callinan J noted: “In view of the characteristics of native title … (for

example, its fragility and elusiveness), it will be important in due course to decide whether native

title rights and interests do amount to rights of ownership enjoyed by others in the community.

However …the answer to that question can await another day.” 19 Wik at 132 (the postscript) per Toohey J (agreed to by Gaudron, Gummow and Kirby JJ): Wik at

243 per Kirby J: “Only if there is inconsistency between the legal interests of the lessee (as defined


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As a result of Wik it was assumed that a grant of exclusive possession

extinguished native title, and it was held that the grant of statutory rights short of

exclusive possession extinguished only inconsistent native title rights. This

approach implied some fragmentation of “native title” into individual rights

capable of being inconsistent with rights under a statutory lease. The description

of native title as a “bundle of rights“20 subject to partial extinguishment was

ultimately endorsed by the High Court in Ward,21 and replaced the conception of

native title as ownership. Ward held that the grant of any land use right removed

the right of exclusive possession from the bundle of rights that constituted native

title.

Once it is accepted that there can be a doctrine of partial extinguishment of native

title by grant of inconsistent rights, what remains may be called a bundle of

rights. Once the right of exclusive possession is removed, the bundle of use-

rights that survives partial extinguishment may look like this:

(a) the right to travel over, move about and to have access to the

determination area;

(b) the right to hunt, fish and forage on the determination area;

(c) the right to gather and to use the natural resources of the

determination area such as food, medicinal plants, timber, stone and

resin;

(d) the right to have access to and use the natural water of the

determination area;

(e) the right to live on the land, to camp, to erect shelters and other

structures;

(f) the right to:

(i) engage in cultural activities:

(ii) conduct ceremonies

(iii) hold meetings;

by the instrument of lease and the legislation under which it was granted) and the native title (as

established by evidence), will such native title, to the extent of the inconsistency, be extinguished.” 20 It was first used to refer to native title in passing in North Ganalanja Aboriginal Corporation v

Queensland (1996) 185 CLR 595 as “the bundle of those rights for which the claimant seeks

recognition” at 616, per Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ. Fejo at [25]

referred to “the bundle of interests we now call native title” and “the rights, which together

constitute native title.” Western Australia v Ward (2000) 99 FCR 316 at [109]-[110]: "In our opinion

the rights and interests of indigenous people which together make up native title are aptly

described as a ‘bundle of rights’. It is possible for some only of those rights to be extinguished by

the creation of inconsistent rights by laws or executive acts. Where this happens 'partial

extinguishment' occurs.” 21 Ward at [95] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “The metaphor of ``bundle of

rights'' which is so often employed in this area is useful in two respects. It draws attention first to

the fact that there may be more than one right or interest and secondly to the fact that there may be

several kinds of rights and interests in relation to land that exist under traditional law and custom.

Not all of those rights and interests may be capable of full or accurate expression as rights to

control what others may do on or with the land.” At [76] per Gleeson CJ, Gaudron, Gummow and

Hayne JJ and at [615] per Callinan J the description of native title is a bundle of rights in Ward

(footnote 20) was endorsed.


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(iv) teach the physical and spiritual attributes of places and areas of

importance on or in the land and waters; and

(v) participate in cultural practices relating to birth and death,

including burial rights.22

Any property conception, including ownership, can be deconstructed into a

bundle of rights, and then reconstructed back into a different bundle of rights.

But this is not how we think about ownership or title. When we claim a right of

ownership or title, we do not do this as a claim for a bundle of specific rights, but

as a claim for something larger and more open ended, which, although it can be

broken down into its constituent rights, is seen as a whole. The traditional right

to land is a complex unity.23 The development of native title jurisprudence has

occurred in the context of the partial extinguishment of native title by pastoral or

other statutory leases as the norm, and has thus diverted attention away from

recognition that the bundle of rights to control and use land that are native title

are equal to or greater than the bundle of rights to control and use land possessed

by holders of an estate in fee simple.

22 Griffiths v Northern Territory (No 2) [2006] FCA 1155; similarly Patta Warumungu People (No 2)

v Northern Territory [2007] FCA 1386 at [5] (text to footnote 224). 23 §4.2(a) Aboriginal connection to land: a complex unity.


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full respect

Consistently with the principle of full respect, the Australian approach to native

title begins with an attempt to perceive the existence of traditional rights and

interests by adopting the language of full respect. Attention is paid to the

Aboriginal perspective and Aboriginal difference in seeing traditional rights in a

generous manner. Attention to the Aboriginal perspective focuses on difference

as the basis to determine the content of the right. This section argues that the

language of full respect is used in describing the way traditional rights are

perceived. How these rights are treated once they emerge from the intersection is

dealt with in the next two sections.

(a) Perceiving rights and interests with full respect

An underlying system of social meaning defines the significance of words and

actions: “I promise” or “you can” have a meaning by reference to social rules

(such as expectations or sanctions) not necessarily communicated by a literal

translation. 24 The conceptual difficulties in comparing two dramatically different

legal systems have long been acknowledged.25 Translation of traditional rights

into common law rights is not the reproduction of traditional rights, but the re-

expression of those rights. Translation is therefore transformation. Native title is

the translation of traditional rights extending beyond but including rights to use

and control land, into common law rights to use and control land.

The proposition that pre-existing rights to land are to be perceived on the basis of

full respect was set out clearly in Mabo:

the pre-existing native interests with respect to land which were assumed

by the common law to be recognized and fully respected under the law of a

newly annexed British territory were not confined to interests which were

analogous to common law concepts of estates in land or proprietary

rights.26

Traditional rights extend beyond common law notions of property:

24 Griffiths v Northern Territory [2007] FCAFC 178 at [75]: “For strangers, such guidance and

protection is essential. Its requirement means that asking permission may be irrelevant. To go

somewhere unknown (that is, outside or beyond your known country) is to court disaster from the

natural and spiritual world. It is not so much a question of asking permission, but of seeking

guidance. Conversely, it is not a matter of trespass but of transgression, where the consequences of

transgression are dire in the extreme.” 25 Amodu Tijani at 403; similarly R v Marshall; R v Bernard [2005] 2 SCR 220 [R v Marshall; R v

Bernard] at [128] per Le Bel J: “It is very difficult to introduce aboriginal conceptions of property

and ownership into the modern property law concepts of the civil law and common law systems,

according to which land is considered to be a stock in trade of the economy.” 26 Mabo at 85 per Deane and Gaudron JJ.


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the rights and interests in relation to land which an Aboriginal community

may hold under traditional law and custom are not to be understood as

confined to the common lawyer's one-dimensional view of property as

control over access.27

Australian jurisprudence labels the system of traditional laws and customs a

normative system:

What survived [the acquisition of sovereignty] were rights and interests in

relation to land or waters. Those rights and interests owed their origin to a

normative system … - the body of norms or normative system that existed

before sovereignty.28

As the basis for finding rights, Australian jurisprudence attempts to perceive

those social norms that can be called “rules”, which can be said to embody

“norms” or a standards of behaviour. 29 Australian jurisprudence labels the

system of rules a “normative system”. To describe the system giving rise to rights

and interests by a term other than “legal system” is also dictated by a notion of

full respect, seeing Aboriginal difference in a generous manner consistently with

the approach that it is pre-existing “rights and interests” under “laws and

customs” that are being fully respected as native title.

(b) Aboriginal connection to land: a complex unity

Perception of the Aboriginal connection to land involves respecting at least three

types of social difference. Firstly, traditional laws and customs exist within a

social context that holds the land is alive: the spirit animates the land.30 Secondly,

there is no clear separation between “law” and other social rights and

obligations, or indeed between law and the shape of existence. The universe, the

land, the people are the way they are because that is dictated by the force

traditionally called “the Dreaming”, but more appropriately called “the Law”, as

opposed to “laws” or a system of laws.31 Thirdly, rights and obligations under

27 Ward at [95] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, similarly [578] per Kirby J; [969]

per Callinan J. 28 Yorta at [36]-[37] per Gleeson CJ, Gummow and Hayne JJ 29 Yorta at [42] per Gleeson CJ, Gummow and Hayne JJ: “Nonetheless, because the subject of

consideration is rights or interests, the rules which together constitute the traditional laws

acknowledged and traditional customs observed, and under which the rights or interests are said to

be possessed, must be rules having normative content. Without that quality, there may be

observable patterns of behaviour but not rights or interests in relation to land or waters”. 30 Sutton P, Kinds of Rights in Country: Recognising customary rights as Incidents of Native Title

(Perth: NNTT, 2001) at 30: “The spirit of the species then animates the foetus and links the identity

of the future child with the location of the special event.” Sampi [159]: “Those law grounds come

from our law. They are made by law. I was told that by old people. A law ground is inamunonjin.

He gave us law ground, given law to look after it. It came from him. It makes us belong to the

country. In other places there is nothing in the ground.” See for example footnote 24. 31 Stanner W, “The Dreaming” [1953] in Stanner W, White Man Got No Dreaming, (Canberra: ANU

Press, 1979) at 29: The Dreaming is “a kind of commentary, or statement, on what is thought to be

permanent and ordained at the very basis of world and life. . . . The Dreaming determines not only


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traditional law are always inseparably linked. The combination of these three

perspectives means that under traditional laws and customs, firstly, there cannot

be a “right to speak for country” without a duty to care for country, this duty

being enforced by both members of the community, and, through the mystical

force of the Law, by the land itself,32 and secondly, there is no clear separation

between the right/duty to land and other rights/duties under the Law. As such,

there is no Aboriginal conception of “title”, or proposition that communal title is

the source of communal, group or individual rights and obligations with respect

to land. Rights and obligations under traditional law flow from the shape of

existence, not because communities, groups or individuals have “title” to land.

It is generally accepted that in non-agricultural societies, rules about connection

to land evolved when there were no opportunities for surplus production, and so

“these ownership systems tend to treat land less as a factor of production and

more as a source of security and a centre of cultural or ideological values and

obligations.”33 The High Court approaches the traditional connection to land on

the same basis:

an important aspect of the socially constituted fact of native title rights and

interests that is recognised by the common law is the spiritual, cultural and

social connection with the land.34

While the above generalisations are contextually valid in all societies observing

traditional law in Australia, the Law in each Aboriginal community, with respect

to rights and obligations connecting people to land, while sharing many common

features on a regional basis, is distinct. To see traditional rights with respect to

land as part of a relationship with the land, a notion of inseparable right/duty

rather than a bundle of individual rights to the land, is the approach adopted in

Ward,35 and reflects full respect for the Aboriginal perspective. The general

what life is but also what it can be. . . .. . a charter of absolute validity in answer to all question of

why and how. . . . of the ways in which good men should, and bad men will, act now.” 32 Sampi at [82]: “Only the Davey family was entitled to ‘break it off’. …If an outsider were to take

the ochre then raya or spirit children would visit his family with sickness. They would similarly

afflict the interloper.” Similarly at [249] “Laurel spoke of her mother’s (Mercia) barnman which is

the umban. If someone disturbs the water hole her mother will get sick”. 33 Giovarelli R and Hanstad T, “Land Ownership”, in Prosterman R and Hanstad T (ed), Effective

Rural Land Relations in ECA Countries: A Comparative Perspective (Washington DC: World Bank

Group, 1998) 15 at 20. 34 Yanner v Eaton (1999) 201 CLR 351 [Yanner] at [37] and [38] per Gleeson CJ, Gaudron, Kirby and

Hayne JJ, after citing the observation of Brennan J in Meneling Station that the traditional

connection was “primarily a spiritual affair rather than a bundle of rights”. Ward at [14] per

Gleeson CJ, Gaudron, Gummow and Hayne JJ: “As is now well recognised, the connection which

Aboriginal peoples have with ‘country’ is essentially spiritual.” 35 Ward at [14] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “The difficulty of expressing a

relationship between a community or group of Aboriginal people and the land in terms of rights

and interests is evident. ..The spiritual or religious is translated into the legal. This requires the

fragmentation of an integrated view of the ordering of affairs into rights and interests which are

considered apart from the duties and obligations which go with them.”


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principles of traditional law discussed below are those found in the Northern

Territory, apart from the western desert. 36

(i) Communal and group rights and obligations

Under traditional laws and customs, primary rights/obligations with respect to

land are not generally held by an undifferentiated community, but by that group

of Aboriginal men and women who have acquired those rights and obligations

by means of descent, connection to the land, knowledge or recruitment.37 Native

title in Australia is communal in the sense that all members of the community

have obligations under traditional law, and the relevant adult members have the

primary obligations. The connection to land is communal. 38

The group of people bound to the same locality hold an “estate”.39 Beyond the

estate is “the range”. An estate is generally characterised as a set of sites,

conceived in terms of key sites, as opposed to a block.40 Boundaries “are always

capable of short-term and long term definition”41 on the basis of criteria of

inclusion and exclusion.

The estate was the traditionally recognized locus (“country”, “home”,

“ground”, “dreaming place”) of some kind of patrilineal descent-group

forming the core or nucleus of the territorial group. It seems usually to

have been a more or less continuous stretch. The range was the tract or

orbit over which the group, including its nucleus and adherents, ordinarily

hunted and foraged to maintain life.42

The connection between clan and estate has been explained thus:

[The clan is] a group of people bound to the same locality by ties of a more

than transient kind – ties of descent and kinship, as well as of religion. In

other words, its members …share a given site or constellation of sites,

sacred or otherwise… Its territory is defined not so much by boundaries

36 Berndt R, “The Concept of 'the Tribe' in the Western Desert” (1959) 30 Oceania 82; Jango v

Northern Territory [2007] FCAFC 101; De Rose v South Australia [2002] FCA 1342. 37 Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005]

FCAFC 135 at [117]: “However, where as in this case the rights and interests are held communally

the relevant connection is that between the community as a whole and the land and waters the

subject of the claim.” 38 Stanner W, “Aboriginal Territorial Organization: Estate, Range, Domain and Regime” (1965) 36

Oceania 1 at 2. 39 Stanner Aboriginal Territorial Organization op cit at 2; Maddock K, The Australian Aborigines: a

portrait of their society (2ed, Ringwood, Vic: Penguin, 1982) 42. Estate groups were recognized in

Yarmirr; Wandarang, Alawa, Marra & Ngalakan Peoples v Northern Territory [2000] FCA 923;

Attorney-General of the Northern Territory v Ward [2003] FCAFC 283; Gumana v Northern

Territory [2005] FCA 50; Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native

Title Claim Group [2005] FCAFC 135; Griffiths v Northern Territory [2007] FCAFC 178. 40 Sutton op cit at 20-21. 41 Williams N, Two laws: Managing Disputes in a Contemporary Aboriginal Community

(Canberra: AIAS, 1987) at 224. 42 Stanner, Aboriginal Territorial Organization, op cit at 2.


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marking it off from similar units, but by the actual sites which it claims. …

This is the land-holding group linked by special spiritual and ritual ties.43

The estate is the area over which the landholding group, as a group, assert

primary spiritual responsibility. The Aboriginal Land Rights (Northern Territory)

Act 1976 (Cwth) was drafted on the basis that it reflected the best anthropological

opinion then available, and defined Aboriginal ownership of land not in terms of

the possession of rights but the possession of duties.44 A common phrase put to

Aboriginal Land Commissioners since the 1970s,45 and now endorsed by the

High Court as a description of the primary Aboriginal connection to land, is the

right “to speak for country”,46 flowing from the obligation to “care for country”.47

From this primary duty/right flows necessary consequential rights to look after

country.

The right to speak for country is held at a communal level in three ways: it is held

by that group of men and women of the community who have acquired the right

under traditional laws and customs, it is exercised on behalf of the community,

not simply the right holders, and it is exercised in accordance with communal

protocols.48 A site within the estate is an area over which communal, group and

individual rights and interests may exist. An individual does not possess an

estate, but may possess rights and obligations under traditional law over a site in

the estate area. Over the range, rights or privileges of land use, but not rights of

43 Berndt R and Berndt C, World of First Australians (Sydney: Angus and Robertson, 1977) 40. 44 Woodward AE, Aboriginal Land Rights Commission, First Report (Canberra: AGPS 1973),

Second Report (Canberra: AGPS 1974) examined the traditional relationships between Aboriginal

people in the Northern Territory and their land and his description of the relationship was accepted

by both Aborigines and others Second Report [15]. He drew on relevant anthropological literature

in developing the concepts of “local descent group” and “primary spiritual responsibility” which

underpin the Act. Under the Act, “traditional Aboriginal owners means “a local descent group of

Aboriginals who …have common spiritual affiliations to a site on the land, being affiliations that

place the group under a primary spiritual responsibility for that site and for the land”. 45 Aboriginal Land Commissioner (Toohey J), Alligator Rivers Stage II Land Claim, (Canberra:

AGPS, 1981) [58]; Aboriginal Land Commissioner (Maurice J), Ti-Tree Station Land Claim

(Canberra: AGPS, 1987) [156]; Aboriginal Land Commissioner (Olney J), Kidman Springs/Jasper

Gorge Land Claim (Canberra: AGPS,1990): 10.2.5 “There is a strong consensus of evidence that Big

Mick, … are the senior men for the Kuwang group. They were consistently identified with Kuwang

country, and as the persons who could speak for it.” Similarly 10.2.7 “The strength of the

traditional attachment of those found to be traditional owners …is beyond question. This is

evidenced by the following facts …(a) They have an extensive knowledge of the country. (b) They

exercise the prerogative to speak for the country. (c) They take responsibility for the sites and the

country. (d) They possess extensive knowledge of the mythology and ritual associated with

the country.” 46 Ward at [93] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; De Rose v South Australia [2002]

FCA 1342 at [532]. 47 Ward at [87] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Neowarra v Western Australia

[2003] FCA 1402 at [156], [300]; De Rose v South Australia [2002] FCA 1342 at [491]. 48 Sutton op cit at 26-29. In Yanner at [74] per Gummow J: “The exercise of rights, or incidents, of an

indigenous community's native title, by sub-groups and individuals within that community, is best

described as the exercise of privileges of native title. … The nature and scope of the privileges in

question will vary with the traditional laws and customs of the particular community."


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primary responsibility or exclusive possession, are asserted at the communal

level.

(ii) The centrality of the community: the locus of exclusive possession

The centrality of the community in the recognition of native title has been

emphasised in comparative jurisprudence.49 The recognition of pre-existing

Aboriginal sovereignty in New Zealand and the USA, and the negotiation of

treaties in Canada, New Zealand and the USA, resulted in the recognition of the

communal unit as the level of interaction with the Crown, and therefore, as a

matter of practicality, the locus of rights to land. It was the communal unit that

asserted rights against other Aboriginal communities and European settlers. It is

also possible to argue that the perception of traditional rights to land as

inherently communal, a theory which “pervades all colonial jurisprudence”,

flows from the perception of Aboriginal communities, and therefore communal

title as “primitive”.50 However, the recognition of communal title rests on a

firmer basis than these bases of pragmatism and racism.

The right of exclusive possession rests at the communal level. It is not an

individual right. The idea of exclusive possession begins with the estate. The

estate is the recognized locus of ties of descent, kinship and religion, of the

complex unity that is the Aboriginal connection to land. From the holding of

primary spiritual responsibility for the land flows the duty to care for country

and the right to speak the country. The right to speak for country is an assertion

of the exclusive right to control access to country:

It is a relationship which sometimes is spoken of as having to care for, and

being able to “speak for”, country. “Speaking for” country is bound up

with the idea that, at least in some circumstances, others should ask for

permission to enter upon country or use it or enjoy its resources.51

The co-existence of a communal assertion of exclusive possession and, within

that communal assertion, an individual assertion of primacy in the hierarchy of

rights (not being an assertion of rights of exclusive control), is consistent with

treating the community as “owner”. In traditional societies, the ability to exclude

as a matter of right is not generally possessed at the individual level, it is shared

by a group.52 In Pacific Canada, land ownership under traditional law is treated

49 §2.2 Native title as property. 50 Brown K, “The language of land: look before you leap” (2000) 4 J South Pacific Law

<www.paclii.org/journals/fJSPL/vol04/2.shtml>. 51 Ward at [14] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 52 Delgamuukw at [155]: “Exclusivity, as an aspect of aboriginal title, vests in the aboriginal

community which holds the ability to exclude others from the lands held pursuant to that title.” R v

Sundown [1999] 1 SCR 393 at [36] per Lamer CJ and L’Heureux-Dubé, Cory, McLachlin, Iacobucci,

Bastarache and Binnie JJ: “Any interest in the hunting cabin is a collective right that is derived from

the treaty and the traditional expeditionary method of hunting. It belongs to the Band as a whole

and not to Mr. Sundown or any individual member .. It would not be possible, for example, for Mr.

Sundown to exclude other members of this First Nation who have the same treaty right to hunt”.


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as communal by reference to where the right to exclude lies or how it may be

conferred.53 Mäori customary tenure is collective: “No individual interests in the

land were discernible”.54 In Mabo, Brennan J distinguished between a proprietary

communal title and usufructuary rights of use in individuals.55

The centrality of a communal entitlement to land accordingly rests neither on a

denial of rights under traditional law being held at an individual level, nor on a

denial that individual rights are common law rights under the continuity

doctrine. The centrality of the communal entitlement rests on the notion that

native “title” dictates the assertion of a claim with a level of proprietary intent in

which a general right to control access to country is manifested, of which the

right to exclude is the paradigm, and that this type of claim is made only at the

communal level. The search is not for a “communal title” under traditional law,

but for traditional rights and obligations which can be recognized by the

common law as native title. The principle of full respect for pre-existing

communal, group and individual rights dictates that common law recognition

will include not only those communal rights that involve a proprietary intent to

control but the kinds of land-use rights recognized in the comparative

jurisprudence as Aboriginal rights, rather than Aboriginal title.

(iii) The right to speak for country as control over access

The appropriate translation of the communal right to speak for country is a right

of exclusive possession:

It may be accepted that ... ‘a core concept of traditional law and custom [is]

the right to be asked permission and to speak for country’. It is the rights

under traditional law and custom to be asked permission and to ‘speak for

country’ that are expressed in common law terms as a right to possess,

occupy, use and enjoy land to the exclusion of all others. The expression of

these rights and interests in these terms reflects not only the content of a

53 The exchange in Calder between the trial judge and anthropologist Duff, reported at 372-374,

highlights this: “A: The owners in this sense had certain rights of alienation. They could give up the

tract of land, lose it in warfare, but in practice it would not go to anybody outside of the tribe, that

is, a tract of Nishga land might change hands but it wouldn't go to other than a Nishga family.

…Exclusive ownership resting not in an individual.

Q: Possession or occupancy, not ownership? A Oh, I see. Possession or occupancy resting in a

specific group rather than an individual.

Q: Could the group having exclusive occupancy select within the tribe, if they close, another group

to whom they wanted to either, to use the modern word, convey it, or would that go by general

communal habit, custom or even law? A: The group could do the thing you suggest. For example,

in some cases the chief of a group might convey a property to his son, which would not be the

normal way; it would be to his nephew in the normal way.

Q: Yes. A: And that would, on rare occasions, be accepted.

Q: Always subject to the acceptance of what, the tribe? A: The tribe, yes.” 54 Law Commission, Mäori Custom and Values op cit in Chapter 2 footnote 22. 55 Mabo at 51 per Brennan J: “The fact that individual members of the community…enjoy only

usufructuary rights that are not proprietary in nature is no impediment to the recognition of a

proprietary community title.” See §4.1(a) The initial translation: native title as communal

ownership.


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right to be asked permission about how and by whom country may be

used, but also the common law's concern to identify property relationships

between people and places or things as rights of control over access to, and

exploitation of, the place or thing.56

A right to speak for country is a right to control access to that country. 57

A generally noted feature of traditional law with respect to the duty to care for

country is the “rite of induction” by which strangers must be introduced to

country by the holders of relevant rights. 58 This obligation is described in the

following terms:

The Rainbow Serpent myth is about land rights, incorporation, and the

confrontation between insiders and outsiders…As I have shown, people

enjoy a kind of symbolic mystical safety within their own Country, but they

are in mortal danger unless they are vouched for - that is, temporarily

incorporated by insiders - when they visit other Countries.59

The right to control access is not an independent right under traditional law.

From the duty to protect country flows the right to speak for country and the

duty/right to control access for the purpose of protecting country. As strangers

may go to places that damage country, and therefore damage those who have a

duty to care for country, their presence must be controlled. As Woodward noted:

“One of the most important proofs of genuine Aboriginal ownership of land will

be the right to exclude from it those who are not welcome”.60

(iv) Traditional use- rights

Traditional rights to hunt and fish are valuable to members of Aboriginal

communities. Rights to hunt within the estate are part of the larger estate

connection to land. The ability to hunt in lands outside the estate may exist as a

56 Ward at [88] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 57 Neowarra v Western Australia [2003] FCA 1402 at [275]: “A right to speak for, speak about, talk

for or talk about country was often used by witnesses …Thus Nugget Tataya understood “speaking

for” country as including the right to permit a mining or tourist company to use the land. …On the

reading of the whole of her evidence it is clear that “speaking for” country means ownership of it.

Thus it is “our own private place” onto which tourist operators should not go without permission.

It involves “making decisions” about the country. …Jimmy Maline …he used “coming from”,

“speaking for”, “belonging to” and “making decision about” country interchangeably. Some

witnesses spoke of a family “owning” country, “looking after” it and “belonging to” it. 58 Sutton, op cit at 26-29; Griffiths v Northern Territory [2007] FCAFC 178 at [77]: “A land owner

has a duty to ensure the safety of all those who visit his or her country. This means that strangers

(mayikari) must be inducted into the country, so that the spirituality of the country will do them no

harm. The strangers also have a duty to pay proper attention to the yakpalimululu and follow his

or her directions, so as to avoid the potent spiritual danger of the country, which must be learned

about and properly understood. Strangers are inducted into country by a senior country owner by

means of a short ritual that involves wetting the head of the stranger with water from a creek or

pool in the country. This ritual is called mulyarp.”. 59 Lardil Peoples v Queensland [2004] FCA 298 at [65]. 60 Woodward op cit at [109].


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privilege or as of right, but in both cases it is a connection to land recognized as

“native title”. Use rights, and especially those with respect to hunting, are subject

to reciprocal duties.61 But such rights, per se, are not rights to exclusive possession

of land or the right to control the uses to which land is put.

(v) Individual rights and obligations

The ultimate connection to land that an individual can have “in central Australia

… and probably in most other parts of the continent” is with that person’s

“conception site”.62 Strehlow, speaking of the Arrernte, described the connection

to conception site as “an inalienable right of personal land ownership”.63 The

conception site is fundamental because this is where the spirit of the land entered

the person and made the person human,64 and “the totemic ancestors …watch

over all property rights, both for themselves and for their reincarnations”.65 A

conception site gives rise to both a direct individual connection to land, and the

individual’s obligations (and therefore rights) under traditional law with respect

to that site. It is common for people conceived/born in the vicinity of a significant

site to associate their birth/conception with that site, so that there will be a small

group who, as individuals, have primary spiritual responsibly for that site. 66 The

connection to land of these individuals is collective in the sense that there is a

group of individuals share the same rights.67 Under traditional laws and customs,

damage to a conception site would lead to sanctions against the collective of

individuals who failed to protect the site. But other members of the community

may not have these rights. It is not correct to say that all traditional rights are

communal. Because of the existence of individual rights and obligations under

traditional law, no two persons are likely to have an identical set of rights,

though they will share many rights/obligations in common.68

61 Peterson N, “Demand-sharing: Reciprocity and the Pressure for Generosity among Foragers”

(1993) 95 American Anthropologist 860 discusses the topic primarily by reference to the Northern

Territory. 62 Strehlow T, Central Australian Religion: Personal Monototemism in a Polytotemic Community,

[1964] (Bedford Park, SA: AASR, 1978) at 44. Conception sites as a basis for rights in country were

recognized in Hayes v Northern Territory [1999] FCA 1248 at [21] (Arrernte native title claimants);

Wandarang, Alawa, Marra & Ngalakan Peoples v Northern Territory [2000] FCA 923 at [48]-[51];

Gumana v Northern Territory [2005] FCA 50 at [133]. 63 Strehlow ibid. 64 Bird R, Dingo Makes Us Human: Life and land in an Aboriginal Australian culture (Melbourne:

Cambridge UP, 1992) discussing the Yarralin people of the Northern Territory. 65 Strehlow ibid. 66 Strehlow ibid. 67 Sutton op cit at 12. 68 Sutton ibid. Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim

Group [2005] FCAFC 135 at [98]: “The fact that customary interests and entitlements are held

communally by each landholding group does not mean every individual member of the

landholding group will possess and exercise exactly the same bundle of customary rights and

entitlements”.


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(vi) Co-existence of communal and individual rights and obligations

Communal rights are not derivative. But it does not follow that sub-communal

rights must be derived from a communal right to land. The High Court in Mabo

and Wik adopted the Amodu Tijani chieftainship model of communal title where

there is a communal title, over which the Chief has personal (but not arbitrary)

powers of right allocation to families.69 This model naturally envisages a

communal title over which families or individuals assert usufructuary rights.

This form of communal title is unknown in the Northern Territory.70 In Wik,

Gummow J noted that Australian law could accommodate notions “of communal

title which confer usufructuary rights”71 (emphasis added) on individuals, a model

which assumes sub-communal rights are “dependent” on or “carved out”72 from

communal title. But an individual’s rights and obligations with respect to the

land do not involve the process of carving a lesser right out of a greater

communal right. Rights are placed in the land directly by “the Law”, and are not

explained by analogy to common law estates.

Members of the native title community exercising rights in common may be part

of a group exercising a group right, or they may be, collectively, merely

exercising individual or sub-group rights in common.73 Communal, group and

individual rights and interests co-exist over the same land. Each right is directly

sourced in the obligations of the Law.

69 Sunmonu v Disu Raphael [1927] AC 881 at 887: “The matter is very well stated in the report

made by Rayner CJ on Land Tenure in West Africa.. adopted by the Privy Council in the case of

Amodu Tijani: “The … notion of individual ownership is quite foreign to native ideas. Land

belongs to the community, the village or the family, never to the individual. .. but in every case the

chief or headman … has charge of the land, and in loose mode of speech is sometimes called the

owner. He is to some extent in the position of a trustee, and as such holds the land for the use of the

community or family. He has control of it, and any member who wants a piece of it to cultivate or

build a house upon, goes to him for it. But the land so given still remains the property of the

community or family.” 70 This type of tenure has not been found to exist by the Federal Court in any native title matter, or

by any Aboriginal Land Commissioner in a report under the Aboriginal Land Rights (Northern

Territory) Act 1976 (Cwth) . 71 Wik at 177: ““there is no particular reason to be drawn from English land law which renders it

anomalous to accommodate in Australian land law notions of communal title which confer

usufructuary rights. There are recognised in England rights of common which depend for their

establishment upon prescription and custom.”. 72 Mabo at 62 per Brennan J: “a sub-group or individual who sues to protect or enforce rights or

interests which are dependent on the communal native title. Those rights and interests are, so to

speak, carved out of the communal native title”. Similarly at 51 set out in footnote 16. 73 Sutton op cit at 39: “There is no way one can make a list of all people with the right to hunt, fish,

gather and sing on a certain piece of land and thus arrive at the definition of ‘the group’ that is the

beneficial holder of” native title.


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(c) Conclusion: the Aboriginal connection to land and the language of full

respect

In Australian jurisprudence, the language of full respect is evident in the

perception of traditional rights, thus giving weight to the Aboriginal perspective:

we look to rights and interests under a normative system (of traditional laws and

customs), though such rights are not necessarily known to the common law, or

consistent with the common law. There is a complexity of traditional rights.74

Accordingly, Australian law recognizes as native title, communal, group and

individual rights and interests.

The right to speak for country is the primary traditional communal right to land,

and as a right that includes control of access, has been translated into a common

law right of exclusive possession. Fundamental to the Aboriginal perspective is

the need to control access to land because of the obligations placed on right

holders to care for country by "the Law". Comparative and Australian

jurisprudence also recognize communal use-rights short of exclusive possession.

However, Australian jurisprudence recognizes that individuals may possess

native title rights, affirming full respect for the complexity of Aboriginal

perspective concerning rights and obligations with respect to country. To the

extent that individual rights involve the recognition of a common law property

right, they are protected as such. The reconciliation of individual property rights

and communal property rights, as common law rights, takes place in the

common law's ability to separately enforce such rights. The existence of

individual rights to land, therefore, does not detract from the communal right to

land, as a right of exclusionary control under traditional law.

74 Sutton op cit at 4 refers to: “local individual or family rights versus tribal over-rights and rights

granted through intertribal territorial comity; rights versus privileges; primary versus secondary

rights; unmediated versus mediated rights; presumptive versus subsidiary rights; actual versus

inchoate versus potential rights; generic versus specific rights; and, more recently, core versus

contingent rights.” At 22: “There is no universal formula for setting out native title rights – they

have to be analysed and presented separately in each case.”


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§4.3 The intersection between normative systems: the denial of full respect

for native title as a common law right

While the language of full respect is adopted in the perception of traditional

rights and interests, the process of translating traditional rights into common law

rights has adopted a jurisprudence where Aboriginal difference is used as a basis

to qualify the notions of full respect and faithful translation into common law

rights.

(a) The intersection between two normative systems exists to enable a right

to be expressed in terms that are meaningful to the common law

The idea of an intersection between systems was first set out by the High Court

in Fejo. In Fejo the court quoted prior statements that native title was

extinguished by the grant of an estate in fee simple,75 and then said:

Native title is neither an institution of the common law nor a form of

common law tenure but it is recognised by the common law. There is,

therefore, an intersection of traditional laws and customs with the common

law.76

The court then held that native title had been extinguished, explaining further the

notion of intersection. In Fejo the idea of intersection was a metaphor: if native

title has been already extinguished, there can be no intersection between

“systems”. But Yorta explained the notion of intersection differently: native title

is “an intersection of two sets of norms, or of two normative systems”.77 There are

two normative systems, but only one is a legal system. Yorta espouses a

conception of two living systems overlapping. The approach to the intersection in

Yorta is to be distinguished from rules of private international law where the

whole purpose of that category of law is to resolve conflicts between “two

competing systems of law”,78 an all or nothing rule.

Ward explained the intersection thus:

75 Fejo at [42]-[45] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 76 Fejo at [46] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. The passage

continues: “The underlying existence of the traditional laws and customs is a necessary pre-

requisite for native title but their existence is not a sufficient basis for recognising native title. And

yet the argument that a grant in fee simple does not extinguish, but merely suspends, native title is

an argument that seeks to convert the fact of continued connection with the land into a right to

maintain that connection.” (emphasis in original) 77 Yorta at [38]-[39] per Gleeson CJ, Gummow and Hayne JJ: “Thus, to continue the metaphor of

intersection, the relevant intersection, concerning as it does rights and interests in land, is an

intersection of two sets of norms…. or of two normative systems. …That intersection is sometimes

expressed by saying that the radical title of the Crown was ‘burdened’ by native title rights”.

Similarly Yarmirr at [244] and [298] per Kirby J. 78 Yarmirr at [33] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “It is a principle which,

whatever its merits may be, represents a resolution of the problems thought to result from the

intersection between what can be seen as two competing systems of law — the law of the place in

which the land is situated and the law of the forum.”


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Identifying the nature and location of that intersection requires careful

attention to the content of traditional law and custom and to the way in

which rights and interests existing under that regime find reflection in the

statutory and common law.79

The idea of an “intersection” is therefore to create a common recognition space

by which only rights and interests that can be meaningfully reflected by

Australian law are translated into rights. As explained in Ward, “the relevant task

…is to identify how rights and interests possessed under traditional law and

custom can properly find expression in common law terms”.80 The same point is

also expressed in Canadian jurisprudence: the recognition of Aboriginal rights

“must be framed in terms cognizable to the Canadian legal and constitutional

structure”.81 Within a jural conception of right, it follows from Aboriginal

difference that there will be an untranslatable residue of traditional rights,

ignored by the common law, either because these rights cannot be perceived to

exist, or, while perceived to exist, cannot be translated into meaningful common

law rights.82

(b) The fragmentation of the Aboriginal connection to land: the common law

as a jurisprudence of rights

The Australian legal system is a jurisprudence of “rights”. To “recognise”

something as a right is to make it “enforceable”.83 To recognise native title is to

give “rights and remedies” to those who hold native title. 84 The recognition of

rights dictates the recognition of correlative duties to respect the right.

Enforceability is essential to the existence of a right under Australian law,85 and

the maxim ubi jus, ubi remedium – “where there is a right there is a remedy”86

79 Ward at [85] per Gleeson CJ, Gaudron Gummow and Hayne JJ 80 Ward at [89] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 81 Van der Peet at [49] per Lamer CJ. 82 An example of the untranslatable is contained in the notion of “value”, because this is a culture

specific notion. If the common law classes a claim as without value, no remedy for interference with the

right claimed is granted, and the existence of a right is therefore denied. But what is valuable in one

culture may not be valuable in another, and value does not necessarily translate across distinct legal

systems. 83 Yarmirr at [343] per Callinan J (diss): “The particular rights and interests must be such that the

common law, however flexible it, and its application may be, is capable of recognising and

enforcing them.” 84 Yarmirr at [42] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “..the common law will

“recognise” those rights. That is, it will, by the ordinary processes of law and equity, give remedies

in support of the relevant rights and interests to those who hold them.” Similarly at [76]: “the

common law will recognise rights and .. it will do so by affording remedies for their enforcement

and protection.” 85 Ashby v White (1703) 2 Ld Raym 938 at 952, per Holt CJ: “Indeed, it is a vain thing to imagine a

right without a remedy, for want of right and want of remedy are reciprocal’…If the plaintiff has a

right, he must of necessity have the means to vindicate and maintain it, and a remedy if he is

injured in the exercise or enjoyment of it.” 86 3 Blackstone Commentaries 24. United States v Loughrey 172 US 206 (1898): “The maxim ‘ubi jus,

ibi remedium,’ lies at the very foundation of all systems of law.”


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embodies this principle. In Mabo the Court saw native title as a true right

protected by such legal or equitable remedies as were appropriate.87 Thus the

traditional right to speak for country is manifested as the common law right of

exclusive possession, protected by remedies such as ejectment.88

It also follows from Aboriginal difference that there will be traditional duties,

attached to traditional rights, which cannot be manifested by an appropriate

common law jural conception. The duty to care for country does not confer an

enforceable right on the whole world. Under traditional law the duty does confer

rights only on those who have other rights/duties over the same country. These

duties remain part of the normative system binding native title holders. These

duties do not receive common law expression because native title is not the

recognition of a system of traditional laws and customs, but the recognition of

property rights.

(c) The rhetoric of difference and new rules of right-recognition

The intersection is the recognition space between two living systems where

common law rules of right-recognition determine what rights receive expression

as common law rights: a process that emphasises both Aboriginal difference and

the primacy of the common law. However, even if traditional rights are capable

of common law expression, there is another aspect to the intersection: traditional

rights cannot be translated into common law rights if to do so would fracture a

“skeletal principle” of the common law, or if the right would be repugnant to

“natural justice, equity and good conscience” (the doctrine of acceptable custom)

or “antithetical” to the common law. These newly created exclusionary rules of

right-recognition have been incorporated into Australian jurisprudence because,

it will be argued below, the paradox of native title as the recognition of property,

and native title as the recognition of Aboriginal law, has not been resolved.

However, these rules, which do not exist in the comparative jurisprudence, as

they are not rules with respect to "property", serve to contextualise rights shaped

by Aboriginal difference as lesser.

(i) The intersection is applied to assert the primacy of the common law perspective

Once a common law right is recognized, common law principles, and common

law and statutory remedies, apply to protect that right, and to shape the common

law expression of the right.

The difference between the traditional and common law perspectives can be

illustrated by attitudes to property in off-shore waters. For at least some

Aboriginal and Torres Strait Islander communities, the sea may be a “country”

where defined rights of use and exclusion exist under traditional law, rights

identical to the rights the communities enjoy with respect to lands and rivers. The

87 Mabo at 61 per Brennan J; Mabo at 100, and at 112 per Deane and Gaudron JJ 88 Radaich v Smith (1959) 101 CLR 209 at 227 per Windeyer J: “A right of exclusive possession is

secured by the right of a lessee to maintain ejectment and, after his entry, trespass.”


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recognition of “control” over the sea, in the form of exclusive Aboriginal fishing

rights, has been recognized in the comparative jurisprudence.89 While traditional

rights of exclusive possession over the sea were not found to exist by the trial

judge in Yarmirr FC, 90 the reason exclusive native title rights over the sea could

not be recognized was said to lie in two factors outside the notion of the

intersection. Firstly, the nature of the sovereign claim to off-shore waters in

Australian law, in that no common law rights of exclusive possession are any

longer asserted, did not permit the recognition of rights of exclusive possession.

Secondly, although the common law once acknowledged an exclusive fishing

right in such waters, in Yarmirr91 the High Court majority adopted a version of

the inconsistency of rights test to hold that a right of exclusive possession or

exclusive fishing was “inconsistent” with common law “principles”.92 This

approach does not engage the issue of whether, as Australian law, the common

law was necessarily modified to the extent necessary to recognize a native title

right of exclusive fishery. 93

The common law recognises rights of exclusive possession, and such rights are

capable of applying, by way of analogy, to things that the common law does not

apply them to: things such as wild animals or off-shore waters. So applied, native

title rights would have meaning and coherence because the common law

expression of the right (exclusive possession) has meaning. Because the common

law no longer recognizes rights of exclusive possession in the sea,94 it could be

89 New Zealand: The Maori Land Court, Re Ninety Mile Beach, (1957) 85 Northern MB 126 at 126-27

recognized exclusivity under Maori law: “These two tribes respectively had complete dominion

over the dry land within their territories, over this foreshore, and over such part of the sea as they

could effectively control. It is well known that the Maoris had their fishing grounds at sea and that

these were jealously guarded against intrusion by outsiders.” Canadian jurisprudence has

developed a conception of priority common law rights rather than exclusive rights, though in

effect, after taking into considerations of conservation, priority may effectively amount to

exclusivity, Sparrow at 1116: “any allocation of priorities after valid conservation measures have

been implemented must give top priority to Indian food fishing.” Similarly Washington v Fishing

Vessel Assn 443 US 658, at 678-9 (1979). 90 Yarmirr v Northern Territory (1998) 82 FCR 533 [Yarmirr (FC)] at [5].

91 Commonwealth v Yarmirr (2001) 208 CLR 1 [Yarmirr]. 92 Yarmirr at [96]-[97] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “the tension between, on

the one hand, the rights to “occupy, use and enjoy the waters of the determination area to the

exclusion of all others” and “to possess” those waters to the exclusion of all others … and, on the

other, the rights of fishing, navigation and free passage is self-evident. …Rather, attention must be

directed to the nature and extent of the inconsistency between the asserted native title rights and

interests and the relevant common law principles.” At [40] the majority went further: “The

requirement in s 223(1)(c), that the native title rights and interests which are claimed are

‘‘recognised by the common law of Australia’’…At the risk of some over-simplification, the

fundamental question … is a question about inconsistency between the asserted rights and the

common law”. 93 Hanasiki v OJ Symes (Unreported, High Court of the Solomon Islands, Charles J 17 August 1951),

discussed at length in Solomon Islands Law Reform Commission Report No. 1, “Land below high

water mark and low water mark” (Honiara: SILRC, 1997) holding that the common law of the

Solomon Islands recognized an exclusive aboriginal right to fish when the right was established

under indigenous custom pre-existing the introduction of the common law. 94 Before the Magna Carta, the Crown could exclude the right of the public to fish by granting a

several fishery to a subject. “It is accepted law that since the Magna Carta in 1215 the Crown cannot


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argued that there is no intersection between systems, because a common law

conception of exclusive rights does not exist in the recognition space designated

“property rights in off-shore waters”. But the intersection is not an intersection

between rights. The intersection is between two systems. The common law

recognizes a limited class of rights in off-shore waters. The conception of a

systemic intersection is present and accepted in Yarmirr. There was no statement

in Yarmirr that exclusive rights in off-shore waters could not be recognized

because there was no intersection between normative systems; nor was the non-

recognition of such rights expressed in terms that the public rights of fishing and

navigation had removed a traditional right from the intersection space.

Recognition of a native title right of exclusive fishing was denied because such a

native title right would be “inconsistent” with common law “principles”.

Superior common law “principles” prevailed over lesser native title rights.

(ii) The doctrine of acceptable custom: traditional law as a source of law that is

subordinate to the common law

The common law of custom does not recognise a title to land “by custom”, it only

recognizes customary rights to use land. 95 The recognition of customary rights

focuses attention on the enjoyment of rights over land not owned by a holder of

the customary right, rather than the concept of title. 96 In Mabo Brennan J argued,

by reference to customs concerning inheritance under traditional law, firstly, that

such transmission rights were “incidents” of native title, and secondly, that in

Australian law there was a doctrine of acceptable custom which limited the

recognition of these “incidents”. Despite a general rejection of principles of

customary land-use rights as relevant to native title,97 the doctrine of acceptable

custom remains.

The common law recognizes certain “customs” as “local common law”, even if

inconsistent with the general common law. The origin of customary rights is

immemorial usage,98 not presumed Crown grant. The common law recognises a

custom if it is:

by executive act grant an exclusive fishery in tidal waters”: Commonwealth v Yarmirr (1999) 101

FCR 171 [Yarmirr (FFC)] at [541] per Merkel J. 95 In Mabo both Brennan J and Toohey J doubted a conception of customary title (ie title by

common law custom) existed. Brennan J at 57: “One argument … was the existence of a title arising

after annexation in accordance with a supposed local legal custom under the common law …There

are substantial difficulties in the way of accepting either of these arguments, but it is unnecessary to

pursue them.” Toohey J at 177: “This third basis of claim raises difficult questions with respect to

the interruption of these rights since such a “title” rests, not on factual occupation or possession,

but on the exercise of particular customs.” 2 Blackstone Commentaries 422-429 recognized only

customary title to chattels. 96 Hull v Nottinghan (1876) 33 LTR 697 (customary right to dance on another's land); Mounsey v

Ismay (1863) 1 Hurl & Colt 729 (customary right to hold annual horserace on another's land). 97 Fejo at [53] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ: “Next, it was

sought to draw some analogy with rights recognised in English land law like rights of common or

customary rights. But reference to those rights in the present context is misplaced. They are

creatures of the common law finding their origins in grant or presumed grant.” (footnotes omitted) 98 12(1) Halsbury’s Laws of England (4th reissue) (London, Butterworths, 1997) “Customs and

Usage” esp [601]: custom is “a particular rule which has existed either actually or presumptively


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• certain;

• exercised since time immemorial;

• observed as of right;

• not inconsistent with statutory law;

• reasonable.99

A custom derives its validity from being “reasonable” at its inception and

remaining reasonable under present conditions.100 The Case of Tanistry101 denied

the recognition of a Brehon law of inheritance (succession devolved through the

most “worthy” male member of the extended kin group), on the basis that it was

unreasonable. 102 In Mabo Brennan J discussed the Case of Tanistry under the

heading “The nature and incidents of native title”103 and stated:

The incidents of a particular native title relating to inheritance, the

transmission or acquisition of rights and interests on death or marriage, the

transfer of rights and interests in land and the grouping of persons to

possess rights and interests in land are matters to be determined by the

laws and customs of the indigenous inhabitants, provided those laws and

customs are not so repugnant to natural justice, equity and good conscience

that judicial sanctions under the new regime must be withheld [footnote:

Idewu Inasa104].105

Repugnancy to natural justice, equity and good conscience is directed specifically

to the traditional “laws and customs” which regulate “incidents” of native title,

as the incidents themselves, such as “inheritance”, as opposed to a rule of

inheritance, could hardly be seen as offensive.

Idewu Inasa, the only case cited in support of the repugnancy proposition, was not

a case about a common law principle. In that case the non-recognition of a

custom contrary to natural justice, equity and good conscience was required by a

statutory provision with respect to the recognition of indigenous law as a direct

from time immemorial and obtained the force of law in a particular locality although contrary to, or

not consistent with, the general common law of the realm.”. 99 12(1) Halsbury’s Laws op cit at [606]. 100 12(1) Halsbury’s Laws op cit [609]-[610]; New Windsor Corporation v Mellor [1975] Ch 380 at

386; Tyson v Smith (1838) 9 Ad and E 406 at 421. Hale M, The History of the Common Law of

England [1713] ((New York, NY: Legal Classics Library 1987) at 18: “First, The Common Law does

determine what of those customs are good and reasonable, and what are unreasonable and void.

Secondly, The Common Law gives to those Customs, that it adjudges reasonable, the Force and

Efficacy of their Obligation.” 101 Case of Tanistry (1608) 80 ER 516. 102 (1608) 80 ER 536: “Therefore this custom which lets the inheritance and the freehold also be in

abeyance, after the death of every tenant, is unreasonable…This custom is also unreasonable ...[as

it] appears plainly to have commencement by the usurpation and tyranny of those who were most

potent amongst them …[Also] this custom was void for uncertainty.” 103 Mabo at 58. 104 Idewu Inasa v Oshodi [1934] AC 99. 105 Mabo at 61.


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source of law. Idewu Inasa involved the application of the phrase “natural justice,

equity and good conscience” occurring in s.20 of the Supreme Court Ordinance

1923 (Nigeria).106 Under that Ordinance, after a rule of customary law was proven

to exist, the court had to then consider whether it was repugnant to “natural

justice, equity and good conscience”. Similar phrases occur in other colonial

legislation.107

In US, Canadian and New Zealand jurisprudence, there is no suggestion that the

recognition of native title may involve the recognition of rights contrary to

natural justice, equity and good conscience. Brennan J’s creation of the doctrine

of acceptable custom is an attempt to limit, not the enforcement of native title

against the world, but the enforcement of specific traditional laws and customs

giving rise to “incidents” governing the way communal rights are acquired,

allocated or enforced against other members of the community, by the common

law. Brennan J’s dicta enters direct recognition, and therefore direct enforcement

of traditional law, and creates a confusion between the recognition of traditional

law as a direct source of law, and the recognition of property rights, a confusion

manifested in Ward in the reasoning of Callinan J:

In Mabo at 42 per Brennan J, it was stated that a change in the law was

necessary to make the common law non-discriminatory. But this Court and

other legal bodies are founded on a post-dream time legal order. Although

some may contend that we should, we do not in fact recognise Aboriginal

criminal law, tort law or any aspects of indigenous laws, nor do we pretend

to. The question then is why the common law of property, which had been

regarded as settled for more than a century, should have been changed to

recognise sui generis interests in land that had no counterpart in our legal

system.108

A different proposition, repugnancy to “natural justice, equity and good

conscience” as a basis to limit the content of the right of native title, was invoked

by the High Court in Yarmirr109 and Yorta:

106 Idewu Inasa v Oshodi [1934] AC 99 at 105. The Privy Council held a custom, which rendered an

offending occupier and all the occupier's relatives liable to be evicted, as one so repugnant to

natural justice, equity and good conscience that recognition must be withheld. However, as the

custom in question had been modified under traditional laws and customs, and was limited to

eviction of the offending occupier and those of his relatives who had supported him, the Privy

Council held that the custom was not so repugnant and, therefore, was entitled to be enforced. 107 This is the general composite phrase employed in west African legislation: Ekow WC, “The

interaction of English Law with customary law in West Africa” (1964) 18 ICLQ 547. Nwabueze RN,

The Dynamics and Genius of Nigeria's Indigenous Legal Order (2003) 1 Indigenous LJ 1. Similarly,

Section 20 of the East Africa Native Courts (Amendment) Ordinance 1902, applying to Kenya,

Tanganyika and Uganda: “In all cases civil and criminal to which natives are parties, every Court

(a) shall be guided by native law so far as it is applicable and is not repugnant to justice and

morality …”. Section 71 of the New Zealand Constitution Act 1852 (UK) allowed the creation of

districts where only Maori “laws, customs, and usages” applied “so far as they are not repugnant to

the general principles of humanity”. 108 In Ward at footnote 1103. 109 Yarmirr at [258] per Kirby J; similarly [177] per McHugh J (diss); [343] per Callinan J (diss).


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The requirement in s.223(1)(c) of the Act is that the rights and interests

claimed as native title be “recognised by the common law of Australia”. …

[C]ommon law … recognition and protection depends on native title not

having been extinguished and its not having incidents that are repugnant

to the common law.110

This passage fails to distinguish between “incidents” of a property right, and the

law regulating such incidents. The rule in Mabo was not a rule about the content

(“incidents”) of native title. Brennan J held that it was claims to incidents, based

on a traditional law determined to be repugnant, that were denied common law

recognition, not the incidents of the title. Brennan J was articulating the denial of

traditional law as a direct source of law by reference to a test akin to

reasonableness. A doctrine of acceptable custom is sourced in doctrines relevant

to the recognition of traditional law as a direct source of law, but native title is a

property right or “title” to land, it is not the recognition of traditional laws and

customs as a legal system.

The common law of custom dictates that a barbarous customary law be denied

recognition in toto, not that it be transformed into a different law shorn of its

offending aspects. If native title were the direct recognition of traditional law,

then native title and principles governing the transmission of native title rights

are matters for indigenous law, or common law custom. The proper resolution of

the tension between native title as the recognition of indigenous law, and native

title as a property right, is the approach taken in Federal Court jurisprudence, the

laws regulating the transmission of native title are part of the native title

property right: hence the determination of the “criterion of group acceptance …

is not to erect or recognise a right to enforce traditional law and custom”.111

Australian law has consistently declared that traditional law cannot be enforced

under the Australian legal system.112 It follows that all incidents of native title are

part of the property right of native title, and therefore the determination of these

incidents is the determination of common law rights. Accordingly, the assertion

of these common law rights against other persons, including those also asserting

native title rights, is a matter for Australian law.

110 Yorta at [110] per Deane and Kirby JJ. 111 Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group

[2005] FCAFC 135 at [114] per Wilcox, French and Weinberg JJ: “The membership of any

indigenous society can be defined by rules associated with particular rights and interests such as

those accruing to the patrilineal descendents of estate group members. Membership rules may also

apply communal recognition and qualification such as birthplace or spousal affiliation. To build in

a criterion of group acceptance to the definition of membership of the relevant community is not to

erect or recognise a right to enforce traditional law and custom.” 112 Gumana v Northern Territory [2005] FCA 50 at [146]: “As already remarked it is not the role of

this Court under s 225 of the NTA to apply, administer or enforce traditional law…Consequently, it

is not the Court’s task to adjudicate upon disputes that may arise under traditional Aboriginal

law.” Yarmirr at [205] per McHugh J: “Sadly from the claimants' point of view, without the

recognition and backing of the common law, rights and interests possessed under traditional laws

are unenforceable in the Australian legal system.”


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(iii) The skeletal principle: native title as different to common law rights and therefore

subordinate to common law doctrines/principles

In Mabo, Brennan J created a second doctrine of rights recognition, one of

indeterminate reference, that the common law could not recognise native title if

this recognition would fracture a skeletal principle of the common law. This

doctrine has not been wholly discounted by later jurisprudence,113 and the

concerns that gave rise to it remain.

Brennan J stated that the recognition of the rights in land of indigenous

inhabitants “would be precluded if the recognition were to fracture a skeletal

principle of our legal system”.114 This is not a statement of extinguishment of

native title by inconsistent rights, but a denial of entry into Australian law. The

doctrine of tenure was “a doctrine that could not be overturned without

fracturing the skeleton which gives our land law its shape and consistency”.115

No basis for the conception of the skeletal principle beyond bare assertion, or the

existence of any other skeletal principle, was indicated by Brennan J. The

principle was created to accord priority to interests in land created in accordance

with the doctrine of tenure, though it was expressed as a universal principle: “It

is not possible, a priori, to distinguish between cases that express a skeletal

principle and those which do not”.116 Native title was to be recognized, as

Callinan J expressed it, “without unduly disturbing the law of Australian

property.”117 A doctrine of skeletal principle limited the extent to which

Australian law was necessarily modified to fully respect native title.

A discussion of what principles fell within the skeletal principle occurred in the

Yarmirr cases where the issue was the recognition of native title rights in offshore

waters, and so the doctrine of tenure did not apply.

The Federal Court, at first instance, held that any exclusive native title right could

not be recognized, as it infringed the right of innocent passage, which Australia

was obliged to recognise and enforce, under international law.118 Recognition of

113 Yarmirr at [258] per Kirby J: “The only limitations on recognition of native title rights and

interests, that pass the tests of pars (a) and (b), to be read into par (c) are those stated in Mabo

[No 2]: namely that native title could not be recognised when to do so would “fracture a skeletal

principle of our legal system”; or where to do so would be repugnant to the rules of natural justice,

equity and good conscience”; similarly at [177] per McHugh J (diss); at [343] per Callinan J (diss). 114 Mabo at 44. 115 Mabo at 45. Brennan J in Dietrich v R (1992) 177 CLR 292 at 319 views the conception of skeleton

as aspect of legal consistency: “Changes in the common law are not made whenever a judge thinks

a change desirable. …In ultimate courts of appeal, the chief constraints are found in the traditional

methods of judicial reasoning which ensure that judicial developments remain consonant not only

with contemporary values but also with what I described in Mabo as “the skeleton of principle

which gives the body of our law its shape and internal consistency”. The law must be kept in

logical order and form, for an aspect of justice is consistency in decisions affecting like cases and

discrimination between unlike cases on bases that can be logically explained.” 116 Mabo at 30. 117 Ward at [969] per Callinan J. 118 Yarmirr (FC) at 592.


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exclusive possession was also said to be inconsistent with the public right of

navigation and the public right to fish, each of which were a “skeletal principle of

our legal system”.119 The Full Federal Court agreed,120 except that, with respect to

the recognition of an exclusive right to fish, Merkel J found that the common law

recognised exclusive fishing rights and considered that no skeletal principle

would be fractured.121 Thus three Federal Court judges found that the skeletal

principles of the public right of navigation and the public right to fish denied the

recognition of a native title right as an exclusive right.

In Yarmirr the High Court joint majority denied common law recognition of

exclusive native title rights in the sea, by reason of an inconsistency between

native title rights and the “common law public rights to navigate and to fish.”122

The joint majority recast the reference to the skeleton of the common law,

categorising it as a “metaphor” that “cannot … be allowed to obscure the

underlying principles that are in issue. … Rather, attention must be directed to

the nature and extent of the inconsistency between the asserted native title rights

and interests and the relevant common law principles.”123 Hence, the skeletal

principle as an aspect of the intersection is affirmed, and remains part of

Australian jurisprudence,124 but the High Court is endorsing the inconsistency of

rights test as the method to deny recognition of exclusive native title rights.

However, in the quotation, the joint majority referred to an inconsistency

between “native title rights” and “common law principles”, not between native

title rights and common law rights. If the quotation’s reference to common law

“principles” is taken to be an exact reference, and if the skeletal principle is a

common law principle, then the skeletal principle remains a direct basis to deny

recognition of a native title right. However, the reference to common law

principles can also be understood in the context that common law principles are

not justiciable, and do not directly give rise to rights. Principles shape or explain

rights, and the existence of a specific right may be reflected in a wider principle.

The High Court was attempting to focus on a specific inconsistency, not an

abstract one.

119 Yarmirr (FC) at 594. 120 Yarmirr FFC at [238] per Beaumont and von Doussa JJ: “In our view, to recognise such a claim

would contradict first, the right of innocent passage allowed by international law rules which have

been acknowledged by Australia both internationally and in the municipal legislation we have

mentioned; and secondly, the common law public rights to fish, and to navigate, in the territorial

sea and adjacent tidal waters. [239] …A power to exclude members of the public as now claimed

would, in our opinion, contradict these common law principles which, along with the right of

innocent passage, are, we think, of sufficient importance to warrant their characterisation as

“skeletal” in the sense meant by Brennan J.” 121 Yarmirr (FFC) [575-632]. 122 Yarmirr at [94] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 123 Yarmirr at [97] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 124 Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31 at

[104].


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(iv) The principle against antithetical rights: native title as subordinate to the common

law

With the re-expression of the skeletal principle as metaphor, two open ended

principles of right recognition have now appeared to replace it: native title rights

which are “antithetical to fundamental tenets of the common law”125 are not

recognised, nor are those which “clash with the general objective of the common

law of the preservation and protection of society as a whole”.126 The assumption

in these two descriptions is that traditional rights connecting Aboriginal people

to land can be expressed in common law terms, but in their common law

expression, these rights might threaten the very existence of society. The

translation of traditional rights into “strictly legal rights” somehow has the

capacity to create a common law right that overwhelms all other common law

rights. It is not obvious how such heightened language is appropriate, or how

such concerns come to be part of the law of native title, as they are

unprecedented and unexampled, and do not reflect the language of native title

recognition in comparative jurisprudence.

(v) Conclusion on the rules of right-recognition


under Australian law in two ways. The first way is to affirm the primacy of the

common law perspective: traditional rights incapable of expression in common

law terms cannot be recognized by Australian law. Therefore, what emerges

from the intersection is, by definition, a common law right. The intersection rests

on the idea of an intersection between two living systems, not on the notion that

traditional law (as a socially binding force) ceased to exist after sovereignty.

Indeed, recognition as native title dictates that traditional laws be observed

today. Therefore the idea of an intersection need not deny full respect to the

Aboriginal perspective in determining the common law right. However, the

intersection has been used in a second way, to deny full respect to traditional

rights in their expression as common law rights, by subjecting the translation

process to a rhetoric that contextualises native title rights as subordinate common

law rights, in the form of three newly created rules of right-recognition: a

doctrine of acceptable custom (traditional rights are subordinate to common law

rights); the “skeletal principle” (native title is both different to common law

rights and subordinate to common law doctrines/principles) and the

complementary principle of “antithetical rights” (native title is subordinate to

fundamental tenets of the common law). These principles of right recognition

have been applied by the Federal Court to deny common law recognition of

traditional rights.

125 Yorta at [77] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; similarly Ward at [20]-[21]. 126 Ward at [21] per Gleeson CJ, Gaudron, Gummow and Hayne JJ referring to Mitchell v MNR at

[153]-[154] . However that case involved not Aboriginal title, nor an Aboriginal connection to land,

but a claimed Aboriginal right: “that pre-contact warrior activities gave rise under successor

regimes to a legal right under s. 35(1) to engage in military adventures on Canadian territory.

Canadian sovereign authority has, as one of its inherent characteristics, a monopoly on the lawful

use of military force within its territory.”


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An “intersection” does not exist in the comparative jurisprudence. Comparative

jurisprudence directly recognizes native title as a form of ownership not derived

from Crown grant. In Australian jurisprudence the rhetoric of the intersection

has been used to create a context in which the distinction between traditional

laws/traditional rights, and native title as a common law property right, is

confused, and native title contextualised as subordinate to all other common law

rights, especially those property rights recognized by the doctrine of tenure.

In Mabo the creation of the right-recognition doctrine of acceptable custom was

justified by reference to a principle involving the recognition of traditional law

under the common law of custom (Case of Tanistry). The concerns at which a

doctrine of acceptable custom are directed are appropriate to either direct the

recognition of Aboriginal law as law, in that such laws may confer rights or

privileges inconsistent with the legal values of Australian law, or to the

recognition of rights or immunities involving aspects of sovereignty: the right to

use military force or an immunity from Australian law or legislative authority.

But the recognition of native title is dictated by the values of Australian law. Why

is the case-law expressing such concerns, in an inappropriately heightened

language, in a property jurisprudence? It is to use the language of right

recognition to create a rule of right priority. It is to create a context and level of

rhetoric in which the common law right of native title is subject to the common

law, as if it were not truly part of the common law. Callinan J describes native

title in these very terms:

It seems likely that the first settlers would have regarded the two as

incompatible, that whatever the Aboriginal peoples possessed by way of

title to land was too foreign, fragile and elusive to withstand and survive

the common law. Mabo was a brave judicial attempt to redress the wrongs

of dispossession. .. The Court has endeavoured to find a way of

recognising, and to a degree protecting, that anomalous interest without

unduly disturbing the law of Australian property.127 (footnotes omitted)

Although native title is a common law right, because it is not an “institution” of

the common law, and because traditional rights are subordinate to common law

rights, then native title, as a common law right, is subordinate to other common

law rights.

Kirby J’s approach to native title similarly embodies a confusion between native

title as a “traditional right” (a right under traditional laws and customs), and

native title as a common law right, attaching the notion of fragility directly to the

common law right of native title:

127 Ward at [969] per Callinan J.


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They [common law rights of which “easements represent an example”] are

not rights, inherently fragile and liable to defeasance, arising outside that

system ...128

As a common law right, native title is inherently fragile.

(d) The content limitation of the native title right

On the introduction of Australian law, native title existed as a living common

law right: a right to own and inherit property. The content of that right included

the “incident” of inheritance. Present native title holders have acquired their

common law right of native title when they inherited that right. Australian

jurisprudence holds that because traditional law is not a direct source of law, the

traditional legal system, appropriately designated as a “normative system” since

the introduction of Australian law, ceases to be a living system for the purpose of

giving content to the living common law right of native title. This approach

denies full respect to the Aboriginal perspective.

(i) The date of sovereignty as the date of the intersection between “legal” systems – a

frozen rights approach

The existence of native title depends on two things. Firstly, prior to the

acquisition of sovereignty there were rights under traditional law, which, on the

introduction of Australian law, became common law rights. Secondly, the

traditional laws which gave rise to those rights are acknowledged today. The

High Court has reconciled the tension between native title as an ancient yet

living right by holding that, for laws and customs to be “traditional”, they must

be “rooted in pre-sovereignty traditional law and custom,”129 but some

“adaptation”130 of pre-sovereign laws will not be fatal. However, there is no test

for deciding what changes in traditional law are significant.131 This tension is

examined by resort to the considerations below.

The High Court’s approach is that every native title right that the common law

recognizes entered Australian law at sovereignty, and has remained a living

common law right unless it has been extinguished. The native title right is firmly

rooted to its pre-sovereign existence. The Australian formulation of native title

128 Fejo at [108] per Kirby J. 129 Yorta at [53] per Gleeson CJ, Gummow and Hayne JJ. 130 Yorta at [83] per Gleeson CJ, Gummow and Hayne JJ: “[S]ome change to, or adaptation of,

traditional law or custom … in the period between the Crown asserting sovereignty and the

present will not necessarily be fatal to a native title claim” (emphasis in original) 131 Yorta at [82] per Gleeson CJ, Gummow and Hayne JJ; “In such cases, difficult questions of fact

and degree may emerge, not only in assessing what, if any, significance should be attached to the

fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not

possible to offer any single bright line test for deciding what inferences may be drawn or when

they may be drawn, any more than it is possible to offer such a test for deciding what changes or

adaptations are significant.”


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assumes the existence of a living and autonomous traditional system, which

shapes the content of the native title right.

Australian legal history has never known an intersection between “legal”

systems, the lex loci of the Australian Colonies has either been post-sovereign

Australian law, or pre-sovereign Aboriginal law. However, the formulation of

native title in Australian jurisprudence, as rights and interests under traditional

laws and customs observed today, does create a legal paradox. Traditional laws

and customs must be observed, as if part of a legal system, even though

Australian law states that traditional laws are not a direct source of law, and

observance of them in any way inconsistent with Australian criminal law is an

offence.132 It is well established that Aboriginal communities in the Northern

Territory have a de facto “two laws” legal system,133 imposition of the sanction

called “payback” being the best known example of the observance of traditional

law to the exclusion of Australian law.134 The “two laws” paradox is unresolved,

and can only be legally resolved by some form of de jure legal pluralism, or

intersocietal law. But in Australia there is only one law, and so the various paths

of legal pluralism are blocked. In order for native title to exist, traditional laws

and customs must be observed even if they are contrary to Australian law.

However, in Yorta the High Court, for the moment abandoning talk of an

intersection between “normative systems” and reverting to an intersection

between “legal systems”, held that native title is an intersection between legal

systems that occurred at the time of sovereignty:

Secondly, however, recognition by the common law is a requirement that

emphasises the fact that there is an intersection between legal systems and

that the intersection occurred at the time of sovereignty. The native title

rights and interests which are the subject of the Act are those which existed

at sovereignty, survived that fundamental change in legal regime, and

now, by resort to the processes of the new legal order, can be enforced and

protected. It is those rights and interests which are “recognised” in the

common law.135

This statement reflects a post-sovereign denial of Aboriginal “law”, but the effect

of sovereignty was only to deny traditional law the status of law, not to deny that

autonomous Aboriginal communities existed after sovereignty, and continued to

observe traditional law. The description of traditional law as a subordinate “legal

system” builds on the conceptualisation of traditional law as a lesser source of

law. Choosing the date of sovereignty to determine the content of the intersection

is inconsistent with both traditional law as a living system, and native title as a

132 These issues are canvassed at length in Northern Territory Law Reform Committee, Background

Paper 1: Aboriginal communities and Aboriginal law in the Northern Territory (Darwin: NTLRC,

2003) [BP1] and Northern Territory Law Reform Committee, Background Paper 3: The legal

recognition of Aboriginal customary law (Darwin: NTLRC, 2003). 133 BP1 op cit at 15-16, 30-35; similarly Williams N, op cit at 96-106 (Arnhem Land). 134 BP1 op cit at 27-28, 31-33, 135 Yorta at [77] per Gleeson CJ, Gummow and Hayne JJ.


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living common law right, and denies a meaningful role to the Aboriginal

perspective manifested in the acknowledgement and observance of traditional

laws today.

(ii) The frozen rights approach applied

Not only does Australian jurisprudence hold that no “rights” under traditional

laws can come into existence after sovereignty, but, by denying the Aboriginal

perspective, it allows a jurisprudence where the content of the native title right is

determined by reference to the manner of its exercise at the date of sovereignty.

This approach focuses attention on the manner of right exercise, rather than the

purpose of the right.

Frozen title

The communal content of native title includes an exclusionary right of control,

and while there may be changes under traditional law in the protocols by which

control is asserted, the consequential in rem right of exclusive possession remains.

However, in Australian jurisprudence, native title is not conceptualised as a true

form of “title”. It is not a right to use the land as native title holders see fit, or to

use land in the manner determined appropriate by the Aboriginal perspective

today. As a bundle of control and use rights, freezing the content of those rights

to their manner and form of enjoyment at sovereignty is a significant limitation

on the content of the right.

Frozen use-rights

Once native title has been fragmented into a bundle of use-rights, native title

becomes the search for particular rights. The requirement to trace a native title

right back to sovereignty also focuses on a particularisation of the content of the

right.136 In Australian jurisprudence, the Federal Court has applied the frozen

rights approach to limit the manner and form of enjoyment of a native title right

to its pre-sovereign form.137 The content of the right has become established by

historically observed behaviour, rather than the purposes underlying the right.

This approach fails to acknowledge a distinction between exercising a native

right in a modern way, and the abandonment of native title rights.

136 Bartlett RH, “Humpies not Houses Or The denial of native title: A comparative assessment of

Australia's museum mentality” (2003) 10 Aust Property LJ 83 [Bartlett Humpies]. 137 In Daniel v Western Australia [2003] FCA 666 at [1163] the determination recognized the right of

the applicants to “camp, build shelters (including boughsheds, mias and humpies).” At [260] the

court stated “I do not consider the evidence establishes the activity extends to building houses

other than shelters I do not consider the evidence establishes the activity extends to building houses

other than shelters”. Bartlett Humpies noted at 17 : “The claimants had a right to build humpies but

not houses!”. He also discusses De Rose v South Australia [2002] FCA 1342 at [500]: “instances of

‘modernisation’ that would, collectively, indicate a break with traditional laws and customs.”

However, in Yorta at [187] Callinan J clearly adopts a frozen rights approach: “The matter [of how

far custom may evolve] went uncontested in Yanner v Eaton, although for myself I might have

questioned whether the use of a motorboat powered by mined and processed fuel, and a steel

tomahawk, remained in accordance with a traditional law or custom”.


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Canadian jurisprudence has attempted to accord full respect to the Aboriginal

perspective in shaping the content of the right,138 by seeing Aboriginal rights as a

living rights under traditional law, and therefore considers that the “purposes

underlying the rights must inform … the definition of the rights”,139 rather than

searching for a direct correlation between the pre-sovereign and modern practice.

Aboriginal hunting/fishing rights are ultimately use rights exercisable “to the

extent they themselves [Aboriginal communities] desired,” subject to limitations

caused by “difficulties in transportation, preservation and resource availability,

as well as those of limitations that they thought advisable to impose for the

purposes of conservation.”140

(iii) A conclusion on the frozen rights approach

The requirement to embed the existence of the living right of native title in the

past has “minimized the impact of Aboriginal rights on non-Aboriginal

people”,141 and rather than respecting native title as a part of the living

Aboriginal connection to land, has minimised the Aboriginal perspective in

shaping the content of the right. The requirement to trace a traditional right back

to sovereignty emphasises the ancient right aspect of native title, and

distinguishes it from other living property use-rights, freezing both the legal

existence of native title at sovereignty, and the manner and form of its expression

to that observed at sovereignty. The doctrine of frozen rights serves to emphasise

Aboriginal difference as a basis for right limitation.

(e) A conclusion on the intersection as a process to deny full respect to

native title

Native title is an attempt at reconciling two independent legal and social

traditions, and this reconciliation is located in the “intersection” between two

living systems: the Australian legal system and the Aboriginal normative system.

Before traditional rights enter the intersection, the rhetoric of full respect is

endemic in Australian jurisprudence. Yet once inside the intersection, newly

created rules of right recognition apply. The intersection denies full respect to

traditional rights, in their expression as common law rights, by subjecting the

translation process to a rhetoric that contextualises native title as a subordinate

common law right in the form of three newly created rules of right-recognition: a

138 R v Marshall; R v Bernard at [130] per Le Bel J: “The role of the aboriginal perspective cannot be

simply to help in the interpretation of aboriginal practices in order to assess whether they conform

to common law concepts of title. The aboriginal perspective shapes the very concept of aboriginal

title.” Similarly R v Marshall (2003) 218 NSR (2d) 78 at [153]-[156] per Cromwell JA. 139 R v Gladstone [1996] 2 SCR 723 [Gladstone] at [71] per Lamer CJ and Sopinka, Gonthier, Cory,

Iacobucci and Major JJ discussing traditional commercial fishing right: the “purposes underlying the

rights must inform ..the definition of the rights”. Gladstone at [71] per Lamer CJ and Sopinka,

Gonthier, Cory, Iacobucci and Major JJ 140 Gladstone at [54] per Lamer CJ and Sopinka, Gonthier, Cory, Iacobucci and Major JJ 141 Borrows J, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of

Toronto Press, 2002) [Borrows Recovering Canada] at 61.


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doctrine of acceptable custom; the “skeletal principle”, and the principle against

“antithetical rights”. These principles are part of the process by which the native

title right that enters the common law, before the application of conceptions of

property or ownership, is compromised in its capacity to compete equally with

other common law rights. The doctrine of frozen rights, by which the content of

native title is limited to its manner and form at sovereignty, conceptualises native

title as a lesser form of right.


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§4.4 Native title: the failure to search for meaningful title

To accord full respect to the traditional connection to land, the common law

expression of the native title right would be in a form that, firstly, reflects the

Aboriginal perspective, and secondly, treats the Aboriginal connection to land

not simply as property, but as a true form of title or ownership. The extent to

which the conceptualisation of native title under Australian law denies full

respect to native title as a common law right of “property”, “title” or

“ownership” is examined in this section.

(a) Espousal of full respect for the Aboriginal perspective in the expression

of the common law right of native title

Australian jurisprudence begins the translation of traditional rights into native

title with an affirmation of full respect for the indigenous perspective, in holding

that native title is not confined to the language of the common law property

lawyer.142 Native title is the expression, in common law terms, of rights not

necessarily known to the common law,143 or “consistent” with the common law.144

After translation, traditional rights exist as common law rights in a

fundamentally changed context, that is, in a superimposed social and legal

system that recognises only part of the wider Aboriginal social norm. The

common law must take account of the importance of the right in the traditional

context, as a basis for according the right appropriate meaning in the common

law context. This approach is emphasised in Canadian jurisprudence. In R v

Marshall; R v Bernard, the Canadian Supreme Court stated, with respect to

translating Aboriginal practice into a modern legal right:

The Court’s task in evaluating a claim for an aboriginal right is to examine

the pre-sovereignty aboriginal practice and translate that practice, as

faithfully and objectively as it can, into a modern legal right.145

The Court must consider the pre-sovereignty practice from the perspective

of the aboriginal people. …This exercise in translating aboriginal practices

to modern rights must not be conducted in a formalistic or narrow way.

The Court should take a generous view of the aboriginal practice and

should not insist on exact conformity to the precise legal parameters of the

142 Yarmirr at [11] per Gleeson CJ, Gaudron Gummow and Hayne JJ: “it is necessary to curb the

tendency (perhaps inevitable and natural) to conduct an inquiry about the existence of native title

rights and interests in the language of the common law property lawyer.” 143 §3.2 (e) Native title includes rights unknown to the common law: a proposition of full

respect. 144 Mabo at 59 per Brennan J: “The general principle that the common law will recognize a

customary title only if it be consistent with the common law is subject to an exception in favour of

traditional native title.” 145 R v Marshall; R v Bernard [2005] 2 SCR 220 at [48] per McLachlin CJ (Major, Bastarache, Abella

and Charron JJ concurring).


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common law right. The question is whether the practice corresponds to the

core concepts of the legal right claimed.146 (emphasis added)

One looks for the “modern right”, including “a particular right, like title to land”,

that best corresponds to the traditional right “from the aboriginal perspective”,147

and for this purpose, “one must take into account the group’s … manner of

life”.148 The translation process attempts to meet a standard of full respect by

denying the minutiae of the common law any controlling role in the translation

process: “Absolute congruity is not required, so long as the practices engage the

core idea of the modern right.”149

The High Court in Ward expressed a similar view, that native title requires a

recognition of rights beyond the right of control:

… the right to be asked for permission and to speak for country is a core

concept in traditional law and custom… it is, however, not an exhaustive

description of the rights and interests in relation to land that exist under

that law and custom. It is wrong to see Aboriginal connection with land as

reflected only in concepts of control of access to it. To speak of Aboriginal

connection with “country” in only those terms is to reduce a very complex

relationship to a single dimension...there are other rights and interests

which must be considered, including rights and interests in the use of the

land.150

The common law expression of native title requires the translation of the “core

concept [of the right] in traditional law and custom” into the modern legal right

whose “core idea” is engaged by the traditional right. Ward is stating that while

“native title” may consist of a right to control land (argued below to be a form of

“title”), it will also consist of use-rights. It follows from the conception of native

title as a bundle of primary, secondary and contingent communal, group and

individual rights, that native title will be the bundle of proprietary and non-

proprietary rights that each member of the native title group enjoys with respect

to land, including, but extending beyond, notions of “title” to land. However, the

existence of rights beyond the notion of title is not a basis to fragment the rights

that engage the core idea of “title” or control (such as the right to speak for

country) into something less than title.

146 R v Marshall; R v Bernard at [48] per McLachlin CJ. 147 R v Marshall; R v Bernard at [52] per McLachlin CJ: “Taking the aboriginal perspective into

account does not mean that a particular right, like title to the land, is established. The question is

what modern right best corresponds to the pre-sovereignty aboriginal practice, examined from the

aboriginal perspective.” 148 Delgamuukw at [149] per Lamer CJ. 149 R v Marshall; R v Bernard at [50] per McLachlin CJ. 150 Ward at [90]-[91] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.


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(b) Native title as property

That the extinguishment of native title was the extinguishment of a property

right was affirmed in Mabo 1, the Native Title Act Case and Ward.151 Accordingly, it

is necessary to locate native title within a property jurisprudence. However,

Australian jurisprudence has not protected native title in a way that is consistent

with either comparative jurisprudence, or the protection of property rights under

Australian law. The extent to which native title corresponds with the common

law expression of “property” is examined below.

There are many justifications for property rights, and these justifications shape

the conception of property.152 In Australian law, property is a legally recognized

power relationship with respect to a thing, a right to control or use a thing.

(i) Property: a right against the world

Property does not exist independently of legal recognition.153 One consequence of

the existence of a property right (often treated as the test of its existence) is the

existence of a remedy for infringement of the right: legal protection endows a

right with proprietary characteristics.154 According to Blackstone, remedy was the

sine qua non of property, as having a “property” right explained why a person,

such as the master/husband/father could recover damages for injury to the

servant/wife/child: the “superior” had “property” in the “inferior”; and also

explained why the inferior could not recover damages for injury to the superior,

the inferior had no property.155

Theorists, such as Hohfeld and Honoré, see property as a series of in rem rights.156

The law distinguishes between in personam rights against specific persons, and in

151 Ward at [111]-[113] per Gleeson CJ, Gaudron, Gummow and Hayne JJ after quoting from Mabo 1

and the Native Title Act Case: “The majority concluded that the human rights of the Miriam people

to own and inherit property, and not to be deprived arbitrarily of their property, were denied or

diminished.” 152 The literature is extensive and usefully summarised in: Lametti D, “Property and (Perhaps)

Justice” (1998) 43 McGill LJ 665. 153 Bentham J, Theory of Legislation (1802) [CK Ogden (ed), Theory of Legislation (London:

Routledge Kegan Paul, 1931)] at 113: “Property and law are born together and die together. Before

laws were made there was no property; take away laws and property ceases”. 154 Wily v St George Partnership Banking (1999) 84 FCR 423, 426 where Sackville J acknowledged

the circularity of such definitions of property: are remedies granted because an interest is

proprietary, or is the interest proprietary because remedies are available? Gummow J noted in

Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services

and Health (1990) 95 ALR 87 at 135: “The degree of protection afforded by equitable doctrines and

remedies to what equity considers confidential information makes it appropriate to describe it as

having a proprietary character. This is not because property is the basis upon which protection is

given, but because of the effect of that protection.” 155 3 Blackstone Commentaries at 142: “the inferior hath no kind of property in time company, care,

or assistance of the superior, as the superior is held to have in those of the inferior, and therefore

the inferior can suffer no loss or injury”. 156 Hohfeld see Chapter 1 footnote 25; Honoré A, “Ownership", in Guest A (ed), Oxford Essays in

Jurisprudence (First Series) (Oxford: Clarendon Press, 1961) at 108-110.


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rem rights “against the whole world”.157 Native title as a right “against the whole

world to possession, occupation, use and enjoyment to the exclusion of all

others”158 is an in rem property right. A determination of native title is a

determination of rights in rem.159 In personam rights bind only the parties standing

in a personal relationship. Canadian jurisprudence has made clear that the

description of native title as “personal” does not deny its proprietary status.160

Native title enjoys the legal protection applied to other proprietary rights.161 As

an in rem right, native title falls within traditional common law conceptions of

“property”.

(ii) Property as legally recognized power: a bundle of control and use rights

Property rights were once described in terms of an absolute right of control over

a thing,162 although both the common law and legislation have long contained

right-limitation rules.163 Property as a “bundle of rights” of somewhat fluid

content is now the dominant conceptual paradigm.164 In western economic

theory, property and ownership are solutions to the problem of access to scarce

resources. Property as control (embodying a right of exclusion) is also the basis

for common law conceptions of ownership: control distinguishes mere property

rights from rights of ownership. The Native Title Act recognizes rights as native

title as long as they reflect a “connection to land”.165

157 The phrase “rights in rem” literally means rights to things but is usually described as meaning a

right against the world. 158 See cases set out Chapter 1 footnote 16. 159 A determination of native title rights under the Native Title Act is a determination of rights in

rem: Wik Peoples v Queensland (1994) 49 FCR 1; Western Australia v Ward (2000) 99 FCR 316 at

368-369; Daniel v Western Australia [2003] FCA 666 at [69]. Gumana v Northern Territory [2005]

FCA 50 at [127]: “It determines the existence of the relevant native title for all purposes and binds

third parties..” Jango v Northern Territory [2007] FCAFC 101 at [85]: “a judgment in rem the Court

determines rights as against the whole world rather than inter partes”. 160 See §2.2(a)(ii) Canada: Aboriginal title. 161 Wik at 251 per Kirby J: “Ordinary common law principles for the protection of a proprietary

right, found to have survived British settlement, extended to the protection of the Indigenous

peoples of Australia, in exactly the same way as the law would protect other Australians.” 162 2 Blackstone Commentaries at 2 where property is defined as “that sole and despotic

dominion…over the external things of the world, in total exclusion of the right of any other

individual in the universe”. 163 Such as the common law doctrine of nuisance. Poirier M, “The Virtue of Vagueness in Takings

Doctrine” (2002) 24 Cardozo L Rev 93 at 111 puts it elegantly: “principles of property and nuisance

law limit what an owner owns”. 164 Yanner at [365] per Gleeson CJ, Gaudron, Kirby and Hayne JJ: “The concept of “property” may

be elusive. Usually it is treated as a “bundle of rights’”; Penner JE, “The “Bundle of Rights” Picture

of Property” (1996) 43 UCLA L Rev 711 at 713 (noting that Honoré’s conception of ownership) and

its incidents and “[t]he bundle of rights analysis of property … serve as a ‘dominant paradigm’

under the aegis of which working lawyers and academic theorists may attend to particular

problems in the law of property”. Similarly Munzer S, A Theory of Property (Cambridge:

Cambridge UP, 1990) 22-36. The bundle of rights conception of property derives from Hohfeld. 165 Section 223 set out in text §1.2 An overview of the Australian law of native title. Ward at [14]

per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “As is now well recognised, the connection

which Aboriginal peoples have with ‘country’ is essentially spiritual.”


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The High Court conceptualised property in the native title context in Yanner,166 a

case which involved recognition of traditional rights to hunt crocodiles on land

over which a “connection to land” existed, as follows:

The word “property” … refers to a degree of power that is recognised in

law as power permissibly exercised over the thing. The concept of

“property” may be elusive. Usually it is treated as a “bundle of rights”. But

even this may have its limits as an analytical tool or accurate description …

Nevertheless, as Professor Gray also says, “An extensive frame of reference

is created by the notion that 'property' consists primarily in control over

access. …[Property is] a legally endorsed concentration of power over

things and resources.” …

Because “property” is a comprehensive term it can be used to describe all

or any of very many different kinds of relationship between a person and a

subject matter.167 (footnotes omitted)

This approach was further endorsed in Yarmirr,168 and brings together two

strands of thinking: property as the recognized power-relationship with respect

to a thing, and property as the “bundle of rights” held against the world which

constitute the content of the power-relationship. Land use-rights, such as timber

harvesting, hunting or fishing come within existing proprietary notions, but, per

se, need not involve a claim to control land.169

The bundle of rights description has the danger that any distribution of rights

and privileges with respect to things can be called “property”, and so no

particular right is regarded as essential. Yet, the bundle of rights analogy is

useful in two ways. Firstly, it does envisage that the relative importance of any

particular right, or accumulated weight of individual rights, may be different,

and so the bundle may range from a thin bundle - “mere property” - to a thick

bundle - “full-blooded ownership”.170 Secondly, if a person owns a property

right, the only theoretically possible rights not possessed in the bundle of rights

will be those that have been somehow removed: “property theory’s dominant

metaphor is in fact the inverse: property is not about identifying what

substantive powers are in the bundle of rights, but rather is characterized by

166 Yanner v Eaton (1999) 201 CLR 351. 167 Yanner at [17]-[20]. 168 Yarmirr at [13] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “Exactly how the common

law uses the word ‘‘property’’ is not without its own difficulties ... It can also be seen as consisting

primarily in control over access to something”; similarly at [286] per Kirby J; all citing Gray K,

“Property in Thin Air” (1991) 50 Cambridge LJ 252. 169 Wik at 169 Gummow J citing Mabo: “The content of native title, its nature and incidents, will

vary from one case to another. It may comprise what are classified as personal or communal

usufructuary rights involving access to the area of land in question to hunt for or gather food, or to

perform traditional ceremonies. This may leave room for others to use the land either concurrently

or from time to time.” Similarly R v Adams, text accompanying Chapter 2, footnote 137. 170 Harris JW, Property and Justice (Oxford: Clarendon Press, 1996) at 29.


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specifying what powers and rights have been removed.”171 The inconsistency of

rights test sees native title as a bundle of removable rights.

(iii) Property as commodity: value and alienation

Property, as either control of access to resources or the possession of resource

use-rights, emphasises that property is valuable. Property as valuable right is a

test for the existence of property in the jurisprudence concerning the acquisition

of “property” within the meaning of the Australian Constitution.172 It can be

accepted that native title control or use rights are valuable.

The idea of an unrestricted right of alienation as part of the property right is also

a part of the western economic commoditisation of property rights, in enhancing

the value and utility of property as a right of the resource access, but alienation is

not an inherent aspect of control or use. An often cited legal test for recognition

of a property right is that set out in National Provincial Bank Ltd v Ainsworth:

Before a right or interest can be admitted into the category of property, or

of a right affecting property, it must be definable, identifiable by third

parties, capable in its nature of assumption by third parties, and have some

degree of permanence or stability.173

The Ainsworth approach to property emphasises the assignability of resource

control or use benefits. However, restrictions on alienability (assumptions of

right by third parties) have consistently been rejected as a basis to deny that a

right is a property right,174 and also rejected as a basis to deny that native title is

property.175

171 Lametti D, op cit at 704. 172 Section 51(xxxi) of the Constitution creates the power of Commonwealth to compulsorily acquire

“property on just terms from any State or person for any purpose in respect of which the

Parliament has power to make laws”. Minister of State for the Army v Dalziel (1944) 68 CLR 261 at

290 per Starke J: “property” extends to “every species of valuable right.” In Mabo at 111 per Deane

and Gaudron JJ considered that the extinguishment of native title was an acquisition of property

under the Constitution. 173 National Provincial Bank Ltd v Ainsworth [1965] AC 1175, at 1247-1248; adopted in R v Toohey;

ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 347; cited in Mabo by Brennan J. 174 National Trustees Executors and Agency Co v FCT (1954) 91 CLR 540 at 583 per Kitto J: “It may

be said categorically that alienability is not an indispensable attribute of a right of property

according to the general sense which the word “property” bears in the law.” Gummow J in Yanner

at [85], noted that a common law debt was not assignable, but was nevertheless property, as was a

life estate. United States v Paine Lumber Company 206 US 467, 473 (1907): “The restraint upon

alienation must not be exaggerated. It does not of itself debase the right below a fee simple.” 175 Brennan J at 51: “It would be wrong, in my opinion, to point to the inalienability of land by that

community and, by importing definitions of `property' which require alienability under the

municipal law of our society [fn: Ainsworth] to deny that the indigenous people owned their land”.

similarly Yarmirr at [287] per Kirby J.


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(iv) Conclusion on native title as property

Native title in the hands of the Aboriginal community is the right of exclusive

possession against the whole world.176 To the extent that a native title right does

not include a right of exclusive possession, it includes use-rights which manifest

the same proprietary characteristics as other forms of right to which the label

“property” attaches. Native title has entered Australian law as a property right.

(c) Native title as title and ownership

Title means ownership. Native title is a property right, but in Australian

jurisprudence, its status as a true form of title, a right akin to ownership, has been

denied. Canadian jurisprudence is clear that the idea of a native “title” indeed

“takes us back to the beginnings of the notion of title”, and that, as “title”,

indigenous rights “compare with the core notions of common law title to land”.177

Native title as communal ownership is to be distinguished from the recognition

of native title rights held by individuals, and the recognition of traditional law.

(i) Title is ownership

The connotation of “title” is that of ownership. Blackstone saw title as the right of

an “owner” to possess land.178 According to Cheshire and Burn: “‘Ownership’ is ..

a title to a subject matter .. that is good against the whole world.”179

In New Zealand and US jurisprudence, native title is ownership.180 The New

Zealand Court of Appeal expressed the proposition simply: Maori title “is a

residual category of ownership not dependent upon title derived from the

Crown”.181 In Canadian jurisprudence exclusive possession is a test of

ownership,182 and Aboriginal title is a right of exclusive possession, described

sometimes as a form of “ownership” distinct from an estate in fee simple, and

176§4.2(b)(ii) The centrality of the community: the locus of exclusive possession. 177 R v Marshall; R v Bernard at [61] per McLachlin CJ: “The search for aboriginal title, by contrast,

takes us back to the beginnings of the notion of title. Unaided by formal legal documents and

written edicts, we are required to consider whether the practices of aboriginal peoples at the time of

sovereignty compare with the core notions of common law title to land. It would be wrong to look

for indicia of aboriginal title in deeds or Euro-centric assertions of ownership. Rather, we must look

for the equivalent in the aboriginal culture at issue”. 178 2 Blackstone Commentaries 195: “title .. is the means whereby the owner of lands has the just

possession of his property.” In Ward at [94] Gleeson CJ, Gaudron, Gummow and Hayne JJ noted

the “portmanteau expression…possession, occupation, use and enjoyment ... to the exclusion of all

others” traditionally constitute “the description of some common law title to land”. 179 Cheshire GC and Burn EH, Modern Law of Real Property (16 ed) (London: Butterworths, 2000)

at 26; similarly Megarry R and Wade HWR, Law of Real Property (6 ed) (London: Sweet &

Maxwell, 2000) at 93: Under the heading “Ownership”, state ownership is "the best ascertained

right to possession", its content is "the right to recover possession", and thus "Possession as a

substantive root of title, is a standing usage of English lawyers and landowners.” 180 §2.2(a)(ii) Aboriginal title as a property right and §2.2(a)(iii) Indian title as a property right 181 Ngati Apa at [40] per Elias CJ further quotations set out Chapter 2 footnote 20. 182 Delgamuukw at [156] per Lamer CJ: “Exclusivity is a common law principle derived from the

notion of fee simple ownership”.


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sometimes as a proprietary interest in land with a sui generis content.183 Canadian

and US jurisprudence hold that Aboriginal title is an exclusive right to use all

things on or under the land, such as trees and minerals, a right not derived from

historic use, but as a consequence of having the right to the land.184

English law has no true jurisprudence of “ownership” of land,185 because the

Crown in England has fictional absolute ownership,186 and all other persons hold

lesser interests, which may be capable of also being called “ownership”.187

Colonial constitutional law is different, and vesting of allodial title in the Crown

by legal fiction by does not form part of Australian law.188

(ii) Title as exclusionary rights of control

Under the common law, title means “exclusionary rights of control. That is what

it means and has always meant.”189 Proof of a right to control land is proof of

title, and of rights akin to full-blooded ownership. However, “one cannot

produce a definitive catalogue … of the control-powers” a person may exercise

over a thing. 190 While the right of exclusion is an indicium of ownership,191 it is not

183 §4.4(d) Native title as a property right with sui generis content. 184 §2.2(a)(ii) Aboriginal title as a property right and §2.2(a)(iii) Indian title as a property right. 185 Cheshire and Burn op cit at 26: “English law never applied the conception of ownership to land”

…All titles to land are ultimately based upon possession in the sense that the title of the man seised

prevails against all who can show no better right to seisin. Seisin is a root of title, and it may be said

without undue exaggeration that so far as land is concerned there is in England no law of

ownership, but only a law of possession…‘Seisin ... is an enjoyment of property based upon title,

and is not essentially distinguishable from right.’” Calder at 368 per Hall J: “Possession is of itself at

common law proof of ownership” citing the Cheshire and Burn 10th ed (1967). Megarry and Wade

op cit at 93: “English law knows no abstract ownership, as opposed to the right to recover

possession”. 186 Megarry and Wade op cit at 93. See §5.1(b) Allodial title. 187 Fejo at [43] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ: “An estate in

fee simple is, “for almost all practical purposes, the equivalent of full ownership of the land” and

confers “the lawful right to exercise over, upon, and in respect to, the land, every act of ownership

which can enter into the imagination” (footnotes omitted). Sandhurst Trustees Ltd v 72 Seventh

Street Nominees (1998) 45 NSWLR 556 at 563 “Distinctions between the Crown's ownership of land

and the ownership of any other person are almost untraceable and do not seem to have any

continuing practical importance… The rights conferred by fee simple ownership are so complete

and the further rights of the Crown under its dominion or lordship are so vestigial that it is

commonplace to speak of the Crown's ownership as a fee simple”. 188 §3.2 (d) English law, modified to fully respect native title. 189 R v Marshall; R v Bernard at [77] per McLachlin CJ: “As discussed, the task of the court is to

sensitively assess the evidence and then find the equivalent modern common law right. The

common law right to title is commensurate with exclusionary rights of control. That is what it

means and has always meant. If the ancient aboriginal practices do not indicate that type of control,

then title is not the appropriate right. To confer title in the absence of evidence of sufficiently

regular and exclusive pre-sovereignty occupation, would transform the ancient right into a new

and different right. It would also obliterate the distinction that this Court has consistently made

between lesser aboriginal rights like the right to fish and the highest aboriginal right, the right to

title to the land”. Similarly Delgamuukw at [156] per Lamer CJ. 190 Harris op cit at 31; similarly Sutton at footnote 73 makes the same point with respect to

traditional rights.


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clear how the right to control land by exercising a power to exclude strangers fits

within the conception of a bundle of rights. An often quoted definition of

property, highlighting property as a state sanctioned power relationship, states

that property is anything to which the following label can be attached:

To the world:

Keep off X unless you have my permission, which I may grant or withhold.

Signed: Private citizen. Endorsed: The state.192

While the absence of a general right to exclude does not deny the categorisation

of a right as property, the right of exclusion is fundamental in that it enhances or

enables the enjoyment of all other property rights. The fundamental relationship

between the right to exclude and the bundle of property rights was illustrated in

Loretto v Teleprompter Manhattan CATV Corp.193 In that case the US Supreme Court

ruled that government authorized placement of cable television boxes on the roof

of a building was a violation of the building owner’s right to exclude, and

required the payment of compensation. By denying a right to exclude, even from

a part of the whole, “government does not simply take a single ‘strand’ from the

‘bundle’ of property rights: it chops through the bundle, taking a slice from every

strand.”194

Australian jurisprudence holds the right to exclude to be an essential feature of

ownership.195 In New Zealand jurisprudence, Maori control of land is equated to

ownership:

[the land] was part of the territory in respect of which the two appellant

Maori tribes exercised exclusive dominion and control, and therefore must

be deemed to have been owned and occupied by those two tribes

respectively according to their customs and usages.196

Because the common law is recognizing Aboriginal title, Canadian jurisprudence

interprets the right of exclusionary control in accordance with the Aboriginal

perspective. Exclusivity “is a common law principle derived from the notion of

191 Honoré A, “Rights of Exclusion and Immunities against Divesting” (1960) 34 Tulane L Rev 453 at

463-64 holds that the right to exclude is paramount: “When a person has a right to exclude others

generally from tangible property he stands, legally, in a special relation to the property.” 192 Cohen F, “Dialogue on Private Property” (1954) 9 Rutgers L Rev 357, 374. De Beer v Graham

(1891) 12 NSWLR (E) 144, 146: “Property may be defined to be the exclusive right to the possession

or enjoyment of something; such right may be limited in time or by conditions.” Similarly Gray,

Thin Air op cit at 268: a “primordial principle” of property law is that a resource be “excludable”,

that is, “if it is feasible for a legal person to exercise regulatory control over the access of strangers

to the various benefits inherent in the resource”. 193 Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982) 194 Loretto v Teleprompter Manhattan CATV Corp 458 US at 435. 195 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [43]

per Gleeson CJ: “An owner of land does not have to justify refusal of entry to a member of the

public, or of the press. The right to choose who may enter, and who will be excluded, is an aspect of

ownership.” 196 Re the Ninety Mile Beach [1963] NZLR 461, 467 per North J.


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fee simple ownership and should be imported into the concept of aboriginal title

with caution …proof of exclusivity must rely on both the perspective of the

common law and the aboriginal perspective, placing equal weight on each.”197

The right of exclusive control was further explained in R v Marshall; R v Bernard :

it is not exclusivity or absolutist notions of control that establish title, but notions

of “effective control”.198

The Aboriginal connection to land includes the right to speak for country, a

communal right of exclusionary control,199 and the common law expression of

this right is a right of exclusive possession.200 Accordingly, Australian

jurisprudence should see native title as a form of title and ownership.

(iii) Native title as a bundle of rights: the denial of meaningful title

The preceding analysis has argued that native title at the communal level is a

right of exclusive possession and therefore a true form of title and ownership.

Given that, prior to extinguishment issues, native title is a right to exclusive

“possession, occupation, use and enjoyment of land”,201 is the distinction between

native title as bundle of rights (of which exclusive possession is one), and native

title as title legally meaningful? The answer is that the distinction is significant in

the most fundamental way. What is respected under the Australian conception of

native title is not a or the communal right to the land. In discarding exclusive

control as the essential touchstone of the common law conception of “title”, and

seeing control as one of a bundle of undifferentiated property rights, the

conceptual door is opened for the notion of native title as a bundle of co-existing

rights over land.

Unless native title is constructed as the accumulation of a bundle of rights, it is a

true form of title or ownership, and therefore the grant of an estate in fee simple

(fee simple “ownership”) over native title land must be explained in terms of the

granting rights over land already owned by another. The conceptualisation of

native title as a bundle of rights means that the grant of an estate in fee simple

need only be examined in terms of a grant of a bundle of competing rights to land.

The legal issue is now: Which rights prevail in the case of an inconsistency of

rights?; not: How has Aboriginal ownership been lost?

197 Delgamuukw at [156] per Lamer CJ . 198 R v Marshall; R v Bernard at [65] per McLachlin CJ: “It follows that evidence of acts of exclusion

is not required to establish aboriginal title. All that is required is demonstration of effective control

of the land by the group, from which a reasonable inference can be drawn that it could have

excluded others had it chosen to do so. … This is what is meant by the requirement of aboriginal

title that the lands have been occupied in an exclusive manner”. 199 §4.2(b)(iii) The right to speak for country as control over access. 200 Mabo at 217, cases cited Chapter 1 footnote 16. Ward at [89] per Gleeson CJ, Gaudron, Gummow

and Hayne JJ: “The expression “possession, occupation, use and enjoyment ... to the exclusion of all

others” is a composite expression directed to describing a particular measure of control over access

to land”. Similarly Yarmirr at [13] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 201 Cases cited §1.2 An overview of the Australian doctrine of native title.


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Similarly, unless native title is constructed as a bundle of rights, there can be no

partial extinguishment of the native “title” to land. Partial extinguishment is built

on a two step foundation: that native title is not a true common law title, but a

series of rights that must compete with other common law rights, and that, in this

competition, other common law rights are true rights and true forms of property,

but native title is not. Australian jurisprudence has not resolved the problem

created by conceptualising native “title” as the recognition of rights extending

beyond notions of control. Comparative jurisprudence has separated Aboriginal

title from non-title rights. While title imports an element of control over land,

mere use rights do not. Use-rights do not attempt to cover the field of possible

rights than may exist over land, and therefore use-rights envisage co-existing

rights. Title, as control, does not envisage co-existing control rights.

(iv) Native title as a communal title

Australian and comparative jurisprudence have recognized native title as a

communal right. 202 While the common law recognizes communal property rights

over land owned by another, 203 it does not have a clear jurisprudence of

communal title or ownership outside the native title context. 204 Common law

jurisprudence is the recognition of the one communal right shared among

communal members, 205 not the recognition of a complexity of communal rights.

Additionally, the distribution of decision-making rights with respect to land

under traditional law does not necessarily parallel property law distinctions

between owners and users.206 Whatever the theoretical justification for

recognition of a communal legal personality, it “is a recognition that the group

can now claim legal rights and owe legal duties in a group name”.207 The

common law recognition of native title as a communal right provides full respect

202 See Chapter 2 - Comparative jurisprudence: native title as a property right. 203 See cases cited footnote 96. 204 Aboriginal communities were taken to have sufficient legal personality to enter into land

surrender agreements in New Zealand, Canada, the American Colonies/USA. The Native Title Act

creates a framework for the holding of native title by corporations which stand in a relationship of

“trust” or “agency” to the native title holding group. Mantziaris C and Martin D, Native Title

Corporations: A Legal and Anthropological Analysis (Leichhardt: Federation Press, 2000) at 114:

“This is intended to avoid the problem of fixing obligations on the ever-fluctuating membership of

a group of natural persons lacking legal personality.” In Australian Broadcasting Corporation v

Lenah Game Meats Pty Ltd (2001) 208 CLR 199, Gummow and Hayne JJ noted at [126] the statutory

creation of a corporate entity: “is ‘a statutory person, a persona ficta created by law’ which [is]

distinct from the personalities of the natural persons who constitute it”. 205 McNeil Common Law at 211-15 proposes the analogy of unincorporated associations (property

rights vest in each member of the association for the time being) which may not be apposite, as

unincorporated associations may involve a distinction between the unincorporated entity, and the

members of the entity. There are many theories explaining corporate personality: Stoljar SJ, Groups

and Entities: An Enquiry into Corporate Theory (Canberra: ANU Press, 1973). 206 Sullivan P, A sacred land, a sovereign people, an Aboriginal corporation. Prescribed Bodies and

the Native Title Act (Darwin: NARU, 1997) 3-5. 207 Huntly CT, In search of an appropriate analogy for sports entities incorporated under

associations incorporation legislation in Australia and New Zealand using broadly conceived

corporate law organic theory (Perth, Murdoch University Digital Theses Program, 2005) Chapter 1

Corporate law theory general and organic theory in particular at 17-18, Salmond, op cit, at 351.


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to the Aboriginal perspective, in attempting to shape the common law right to

land by conferring a legal personality on the community, enabling that

community to hold a complexity of property rights over land.

(v) Native title rights held by individuals

Under traditional laws and customs, the right to exclude rests only at the

communal level,208 and so conceptions of “title” and “ownership” rest only at the

communal level. But native title also involves the recognition of a bundle of

subgroup and individual rights beyond the concept of title. While English law,

and comparative native title jurisprudence, “did not have to attempt to reconcile

notions of individual and communal rights”209 to land, the Australian law of

native title does. It is in the ability to separately enforce distinct rights that

individual and collective rights are reconciled to each other at common law.

Group rights may be asserted by the group as a whole. The representative action

has been created by the common law as the means by which an individual or

subgroup asserts group rights on behalf of the group, and applied to the

protection of native title.210

The determination of the incidents of native title, is the determination of a matter

under Australian law. Similarly, the determination of an individual's native title

rights is a matter of Australian law. However, the problem of individually held

native title rights has not been completely resolved. Australian law must both

espouse the proposition that individual native title rights, as common law rights,

are enforceable against the whole world (if proprietary),211 and reject the

proposition that individual rights, as common law rights, must be enforceable

against other members of the community. The failure to enforce an individual’s

rights against community members can be explained by treating that right, not as

a common law property right, but as a right directly arising under traditional

law.212 However, the enforcement of an individual’s native title right is not the

enforcement of rights under traditional law, it is the enforcement under

Australian law of rights “possessed under the sovereignty of the Crown”.213 The

tension in the conception of native title as somehow involving the direct

recognition of a right under traditional law, posits native title is something not

wholly within the common law system, and therefore as something distinct from

common law rights.

208 §4.2(b)(ii) The centrality of the community: the locus of exclusive possession. 209 Yarmirr at [298] per Kirby J: “English law did not have to attempt to reconcile notions of

individual and communal rights; similarly Strelein L, “Conceptualising Native Title” (2001) 23

Sydney L Rev 95 at 97. 210 Mabo at 62-63 per Brennan J. 211 §4.4(b) Native title as property. 212 Gumana v Northern Territory [2005] FCA 50 at [146]: “it is not the role of this Court under s 225

of the NTA to apply, administer or enforce traditional law…Consequently, it is not the Court’s task

to adjudicate upon disputes that may arise under traditional Aboriginal law.” 213 Yarmirr at [204] per McHugh J: “Any title rights and interests possessed by Aboriginal or Torres

Strait Island peoples under traditional laws and customs are possessed under the sovereignty of the

Crown.”


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(d) Native title as a property right with sui generis content

A minority strand of Australian judicial opinion sees native title as a qualitatively

different form of property, a sui generis form of property, and this approach to

native title is to be distinguished.

The term sui generis means “of one’s or its own kind,”214 and connotes something

that is “unique”.215 It has been applied to describe a range of legal interests,216

including native title. Describing something as sui generis denotes that the thing is

unlike something to which it is compared, rather than that the thing has any

particular quality. Does the idea that native title might appropriately be called sui

generis add anything to the understanding of it as a property right under

Australian law? 217 The term sui generis does not appear in New Zealand or US

jurisprudence, nor is there any relevant discussion of the uniqueness of native

“title” in those jurisdictions. In New Zealand jurisprudence, native title is

ownership. In US jurisprudence, native title is at the same time, a sovereign right

to land and a property right under domestic law. The term sui generis is

significant only in Canadian jurisprudence, where it has been applied to describe

the both Aboriginal title218 and Aboriginal rights.219 Sui generis is a label applied to

group the various ways in which Aboriginal title is different to fee simple

ownership.

(i) Native title as a sui generis right

In Canadian jurisprudence, the discussion of Aboriginal title and Aboriginal

rights as sui generis occurs in the context of a debate about whether native title is

an aspect of the direct recognition of Aboriginal law, and thus a truly sui generis

conception of something that is, at the same time, both a product of Aboriginal

law and Canadian law, yet explained by neither, a form of “intersocietal law”.220

If native title is the product of an intersocietal law, then the native title right is

214 Oxford English Dictionary (2ed, Oxford: Clarendon Press, 1989) 145. 215 Nygh P and Butt P (eds), Butterworths Australian Legal Dictionary (Sydney: Butterworths, 1997)

1132: “all of its own; unique”. 216 Such as pastoral leases: Wik at 242 per Kirby J. 217 The question posed in Borrows J and Rotman L, “The sui generis Nature of Aboriginal Rights:

Does it Make a Difference?” (1997) 36 Alberta L Rev 9 at 9. 218 Canadian Pacific Ltd v Paul [1988] 2 SCR 654 at 678: “The.. Indian interest in land is truly sui

generis. It is more than the right to enjoyment and occupancy although . . . it is difficult to describe

what more in traditional property law terminology”. R v Marshall; R v Bernard at [129] per

McLachlin CJ: “This Court has on many occasions explained that aboriginal title is a sui generis

interest in land.”. 219 Delgamuukw at [82] per Lamer CJ: “In other words, although the doctrine of aboriginal rights is

a common law doctrine, aboriginal rights are truly sui generis. 220 First set out in Slattery, Understanding Aboriginal Rights, at 736-41, 744-45. In Van der Peet [42]

Lamer CJ adopted the proposition that Aboriginal title is “neither English nor aboriginal in origin:

it is a form of intersocietal law that evolved from long-standing practices linking the various

communities”. Similarly Delgamuukw at [113] per Lamer CJ; Borrows Recovering Canada op cit at

8, 10-12; Borrows J and Rotman L op cit at 37: “the sui generis nature of Aboriginal rights flows

from their intersocietal nature”.


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axiomatically sui generis, and unlike any common law right. This approach has

been advocated by Lamer CJ who also envisaged that in the recognition of

Aboriginal rights, the Aboriginal perspective could shape the entire common

law, though relevantly only the law of evidence was in issue:

[The] court must take into account the perspective of the aboriginal people

claiming the right. . . . while at the same time taking into account the

perspective of the common law such that true reconciliation will, equally,

place weight on each. In other words, although the doctrine of aboriginal

rights is a common law doctrine, aboriginal rights are truly sui generis, and

demand a unique approach to the treatment of evidence which accords due

weight to the perspective of aboriginal peoples.221

Such an approach goes beyond notions of property,222 and remains inconsistent

with native title as a “common law right”, or as an expression of right in common

law terms.223 The idea of an intersocietal law is not as an accurate description of

native title under Australian law, where, on the basis of full respect for

traditional rights, the Aboriginal perspective plays a role in shaping the

expression of the common law right of native title.

(ii) Native title as property with a sui generis content

The content of native title is sui generis because it includes the translation of

rights, at least some of which are of a kind unknown to the common law, into

rights expressed in common law terms. In the absence of a right to control access

to land, native title is a bundle of use-rights, such as the following:

(a) the right to live on the land, and for that purpose, to camp, erect

shelters and other structures, and to travel over and access any part

of the Recognition Area;

(b) the right to hunt, gather and take the natural resources of the

Recognition Area;

(c) the right to access, maintain and protect places and areas of

importance in the Recognition Area;

(d) the right to engage in the following activities on the Recognition

Area:

(i) engage in cultural activities;

221 Delgamuukw at [81]-[82] per Lamer CJ, quoting from Van der Peet (quotation marks omitted) 222 Delgamuukw at [5] per Lamer CJ: “In Van der Peet, I held that the common law rules of

evidence should be adapted to take into account the sui generis nature of aboriginal rights.”

Similarly at [87] “Notwithstanding the challenges created by the use of oral histories as proof of

historical facts, the laws of evidence must be adapted in order that this type of evidence can be

accommodated and placed on an equal footing with the types of historical evidence that courts are

familiar with, which largely consists of historical documents.” 223 R v Marshall; R v Bernard at [48] per McLachlin CJ: the Court must “translate” aboriginal

practice into “a modern legal right,” a process that seeks “a corresponding common law right”.

Walters MD, “The Morality of Aboriginal Law” (2006) 31 Queen's LJ 470 at 517: the “Marshall and

Bernard cases confirms that the idea of a truly intersocietal law is still more an ideal than a reality”.


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(ii) conduct ceremonies;

(iii) hold meetings;

(iv) teach the physical and spiritual attributes of places and areas of

importance; and

(v) participate in cultural practices relating to birth and death

including burial rites,

including the power to regulate the presence of others at any of these

activities on the Recognition Area;

(e) the right to make decisions about the use and enjoyment of the

Recognition Area by Aboriginal people who acknowledge the

traditional laws and customs of the native title holders;

(f) the right to share and exchange natural resources obtained on or from

the Recognition Area, including traditional items made from the

natural resources of the Recognition Area.224

Rights (a), (b) and (f) might be implied in a grant of tenure such as an estate in fee

simple or a common law lease. In contrast, rights (c), (d) and (e) are rights shaped

by Aboriginal difference and reflect the Aboriginal connection to land. It follows

that as a bundle of common law rights to use and control land, but rights shaped

by Aboriginal difference, native title will not have the same content as the bundle

of rights conveyed by an estate in fee simple in accordance with the doctrine of

tenure. However, native title is the expression of rights in common law terms. A

conception of use-right is a fundamental aspect of what “property” means, and

in this context, sui generis is a label attached to the content of the use-right, rather

than a proposition that the use-right is qualitatively different to common law

use-rights land. Canadian jurisprudence accepts this interpretation of sui generis

as established:

I am cognizant that the sui generis nature of aboriginal title precludes the

application of 'traditional real property rules' to elucidate the content of that

title.225 (emphasis added)

The description of native title as a property right with sui generis content does not

provide a relevant basis to distinguish native title as a property right, from other

property rights.

(iii) Native title as sui generis property

In Canadian jurisprudence, the issue of whether native title is a qualitatively

different category of “property” has been raised by a conception that Aboriginal

rights, which include Aboriginal title, are part of a jurisprudence which is itself

sui generis, though not amounting to a form of intersocietal law.

224 Patta Warumungu People v Northern Territory [2007] FCA 1386 at [5]. 225 Delgamuukw at [130] per Lamer CJ, a proposition previously stated by the Supreme Court in St

Mary's Indian Band v Cranbrook (City) [1997] 2 SCR 657 at [14] .


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The description of native title as sui generis begins in Guerin where it was adopted

as part of the process of retreat226 from the St Catherine's conception of native title

as a “personal and usufructuary” right held during the goodwill of the sovereign:

It appears to me that there is no real conflict between the cases which

characterize Indian title as a beneficial interest of some sort, and those

which characterize it a personal, usufructuary right. …courts have almost

inevitably found themselves applying a somewhat inappropriate

terminology drawn from general property law. There is a core of truth in

the way that each of the two lines of authority has described native title,

but .. in neither case is the categorization quite accurate. It is true that the

sui generis interest which the Indians have in the land is personal in the

sense that it cannot be transferred to a grantee. 227

Guerin began the process of re-conceptualisation of native title, commenced in a

preliminary way in both Calder and Baker Lake, 228 by which the description of

native title as a “personal” right was recast as a reference to its inalienability, and

not as a description of it as an interest in land.229 The modern conception of sui

generis is that set out by Lamer CJ, first in Van der Peet, and in a more

comprehensive form, in Delgamuukw:

Aboriginal title .. is also sui generis in the sense that its characteristics

cannot be completely explained by reference either to the common law

rules of real property or to the rules of property found in aboriginal legal

systems. As with other aboriginal rights, it must be understood by

reference to both common law and aboriginal perspectives.230

When one turns to the reasons given by Lamer CJ as to why native title is sui

generis, there is no relationship between those reasons and an idea of sui generis

property. Lamer CJ holds that native title is sui generis for four reasons: “although

the doctrine of aboriginal rights is a common law doctrine” there are two

“sources” of native title: occupation pre-dating sovereignty and that

226 Osoyoos Indian Band v Oliver (Town) [2001] 3 SCR 746 at [41] per McLachlin CJ, Iacobucci,

Binnie, Arbour and LeBel JJ referring to St Catherine's: “Since then, our understanding of the nature

of aboriginal interests in land has continued to develop”. Delgamuukw at [112] per Lamer CJ: “The

starting point of the Canadian jurisprudence on aboriginal title is … St Catherine's which described

aboriginal title as a “personal and usufructuary right”. The subsequent jurisprudence has

attempted to grapple with this definition, and has in the process demonstrated that the Privy

Council's choice of terminology is not particularly helpful to explain the various dimensions of

aboriginal title” (footnotes omitted). 227 Guerin at 382. 228 Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513 was a decision of the

Federal Court. See discussion §6.3(e)(iv) Canadian jurisprudence. 229 Guerin at 382: “The nature of the Indians' interest is therefore best characterized by its general

inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on

the Indians' behalf when the interest is surrendered. Any description of Indian title which goes

beyond these two features is both unnecessary and potentially misleading”. 230 Delgamuukw at [117] per Lamer CJ.


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“relationship” between Aboriginal law and the common law,231 native title is

“inalienable”,232 native title is “held communally”,233 and the surrender or

extinguishment imposes a fiduciary duty on the Crown.

Aboriginal occupation gives a right to possession, and thus a title to land, but the

sole basis stated as a reason to distinguish Aboriginal occupation from

occupation under the estate in fee simple, and what gives it a sui generis source, is

that Aboriginal occupation arises “before the assertion of British

sovereignty”(emphasis in original). 234 Pre-sovereign occupation is the traditional

source of native title in Canadian jurisprudence235 which makes no relevant

distinction between “occupation” by the members of Aboriginal communities,

and common law conceptions of occupation. The common law recognition of

communal occupation and communal ownership (but not communal rights) is

unique to native title jurisprudence, but recognition of a communal legal

personality “is a recognition that the group can now claim legal rights and owe

legal duties in a group name”,236 rather than an explanation of the quality of the

rights held by the group. The second source of native title, as an aspect of an

intersocietal law derived from a relationship between Aboriginal and non-

Aboriginal communities, was noted earlier. A fiduciary duty also arises because

of the relationship between Aboriginal communities and the Crown, not

necessarily from the proprietary nature of native title.237 However both the

existence of a fiduciary duty, and the second source of native title, emphasise that

Canadian jurisprudence sees native title and Aboriginal rights as part of a living

relationship between indigenous peoples and the Crown, and not simply as the

recognition of fragile rights frozen in time. The relevance of the principle that

native title is alienable only to the Crown, to the conception of native title as

ownership, is discussed in the next section.

231 Delgamuukw at [114] per Lamer CJ: “Another dimension of aboriginal title is its source. It … is

clear that although aboriginal title was recognized by the Proclamation, it arises from the prior

occupation of Canada by aboriginal peoples. That prior occupation, however, is relevant in two

different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the

physical fact of occupation, which derives from the common law principle that occupation is proof

of possession in law: see McNeil Common Law Aboriginal … What makes aboriginal title sui

generis is that it arises from possession before the assertion of British sovereignty, whereas normal

estates, like fee simple, arise afterward…What this suggests is a second source for aboriginal title -

the relationship between common law and pre-existing systems of aboriginal law.” (emphasis in

original). 232 See footnote 238. 233 Delgamuukw at [115] per Lamer CJ see text accompanying Chapter 2 footnote 47. In the

common law, communal rights to land were “normally limited to an easement rather than to a fee

interest”: Rose C, “The Comedy of the Commons: Custom, Commerce, and Inherently Public

Property” (1996) 53 U Chi L Rev 711 at 761 234 See footnote 231. 235 See §2.2(ii) Canada: Aboriginal title. 236 Huntly CT, op cit footnote 207. 237 The sui generis nature of native title is a source of the fiduciary obligation on the Crown with

respect to surrender or extinguishment of native title: Sparrow at 1108-09 and Chapter 3 footnote

22.


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The proposition that the sui generis nature of the native title means that native

title cannot compete “on an equal footing with other proprietary interests”238 has

been expressly rejected in Canadian jurisprudence. Sui generis has meaning as a

label239 that distinguishes native title ownership from fee simple ownership,240

which is sourced in an actual or presumed Crown grant, is alienable, and is not

held communally, as at common law communities do not have a sufficient legal

personality to be the recipients of a Crown grant.

(iv) Australian jurisprudence: native title as sui generis property

The description of native title as a sui generis right was previously used in

Australian jurisprudence to describe native title as a personal right, and is now

used by Kirby J and Callinan J in a unique line of jurisprudence which confuses

traditional rights with native title.

Native title as a personal right to land

Three members of the High Court (Deane and Gaudron JJ and Kirby J) have used

sui generis as a description of native title as a personal (non-proprietary) right,

thus espousing the very proposition that Canadian jurisprudence used the notion

of sui generis to reject. In Mabo Deane and Gaudron JJ saw native title as a

personal right:

The … personal nature of the rights under it [“common law native title”]

and the absence of any legal or equitable estate or interest in the land itself

invite analogy with the kind of entitlement to use or occupy the land of

another which confers no estate or interest in the land and constitutes a

“mere equity’ …On the other hand, the rights … can, approach …

ownership at common law. The preferable approach is that adopted in

Amodu Tijani and Guerin namely, to recognize the inappropriateness of

forcing the native title to conform to traditional common law concepts and

to accept it as sui generis or unique.241

The personal rights conferred by common law native title do not constitute

an estate or interest in the land itself. 242

238 Delgamuukw at [113] per Lamer CJ: “One dimension is its inalienability….This Court has taken

pains to clarify that aboriginal title is only “personal” in this sense, and does not mean that

aboriginal title is a non-proprietary interest which amounts to no more than a licence to use and

occupy the land and cannot compete on an equal footing with other proprietary interests”. Van der

Peet at [119] per L'Heureux-Dubé J (diss): Aboriginal title is “sui generis proprietary interest which

gives native people the right to occupy and use the land at their own discretion”. 239 Delgamuukw at [113] per Lamer CJ “The idea that aboriginal title is sui generis is the unifying

principle underlying the various dimensions of that title”. 240 Delgamuukw at [190] per Lamer CJ: “This sui generis interest is not equated with fee simple

ownership”; and at [111]: “aboriginal title as a sui generis interest in land … is distinct from a fee

simple”. 241 Mabo at 89 per Deane and Gaudron JJ. 242 Mabo at 110 per Deane and Gaudron JJ.


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Kirby J in Wik243 also used sui generis to describe native title as a personal (and

implicitly non-proprietary) right, but abandoned this approach in Yarmirr. 244 The

conception of native title as an interest in land incapable of being a proprietary

interest was not adopted in Mabo by Brennan J245 or Toohey J246 and was

abandoned by the High Court in Ward.247 To the extent that sui generis implies

non-proprietary, it is no longer part of Australian law.

Native title as a confusion between common law right and traditional right

A distinct jurisprudence developed by Kirby J assumes that native title is the

direct recognition of a right under traditional law called “customary title”, and,

confusing customary title with native title, holds that native title is sui generis and

fragile:

Paragraph (c) [of s.233(1) of the Native Title Act] then ties the sui generis and

fragile customary title rights to the relative security of the common law, as

re-expressed in Mabo.248 (emphasis added)

That customary title is “fragile” is correct. Customary title is not a right under

Australian law. But it is meaningless to describe customary title as sui generis. It is

only native title that can be sui generis in its common law expression, when

compared to other common law titles. Callinan J exhibited a similar confusion:

customary title is native title, and the traditional right is the common law right.

The judgments in Mabo made no claim to create native title. The holding is

that native title existed before, and at the time of first non-indigenous

settlement. …The result of that decision was effectively to make native title

a foster child of the common law notwithstanding its fragility, elusiveness

and other marked differences from its foster parent. ... Native title is not an

institution of the common law. It must stand on its own foundations: it is

sui generis. 249

243 Wik at 215 per Kirby J: “It seems safer to agree with Macfarlane JA in Delgamuukw that

Aboriginal rights are sui generis, difficult if not impossible to describe in the terminology of

traditional property law, being communal, personal and usufructuary.” 244 Yarmirr at [286] per Kirby J: “The common law has recognised a proprietary community title”. 245 Mabo at 39 Brennan J: “The theory that the indigenous inhabitants of a “settled” colony had no

proprietary interests in the land thus depended on a discriminatory denigration of indigenous

inhabitants, their social organization and customs.” Similarly at 53: “If it be necessary to categorize

an interest in land as proprietary in order that it survive a change in sovereignty, the interest

possessed by a community that is in exclusive possession of land falls into that category.” 246 Mabo at 214 Toohey J equated native title to possessory title. 247 Ward at [111] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “traditional communal and

personal [ie individual] proprietary rights and interests to the land”; similarly [88], [113] quoting

Native Title Act Case; and 116] referring to Mabo 1: “Property" in this context includes land and

chattels as well as interests therein and extends to native title rights and interests.” At [124]:

“Finally, legislation may attract ..the RDA because it purports on its face to extinguish native title ..

on less stringent conditions .. than those which govern the expropriation of the property of the

people of another race.” 248 Yarmirr at [258] per Kirby J . 249 Yorta at [180] per Callinan J.


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The reasoning of Callinan J and Kirby J stand for no more than the proposition

that traditional rights are sui generis when compared to common law rights,

because they are not common law rights.250 But native title is not the direct

recognition of rights under traditional law. It is a right under Australian law.

(v) Conclusion

While the description of native title as sui generis in Canadian jurisprudence has a

meaning, namely to posit Aboriginal title as a proprietary interest whose right

content is different to the right content under an estate in fee simple because

Aboriginal title content has been shaped by Aboriginal difference, the term sui

generis has only exceptionally and idiosyncratically been used in Australian

jurisprudence.

(e) Native title: alienation and ownership

Native title possesses the indicia of common law conceptions of ownership,

except that native title is alienable only to the Crown. However, the doctrine of

restricted alienability is consistent with native title as a common law property

right.

The jurisprudence of Australia, Canada, New Zealand and the USA all hold that

native title is inalienable, other than to the Crown/federal government. In all these

jurisdictions except Canada, the principle of inalienability is sometimes

expressed as the Crown having a right of “pre-emption”,251 the usual form of

expression in New Zealand, which affirms that native title is both property and a

truly alienable right: “A right of pre-emption must denote that there is something

to buy and sell.”.252 All other rights to deal with the land, apart from alienation,

are unaffected by this doctrine.253 To assert a Crown right of pre-emption is to

assert a sovereign right, not a property right in the land.254 If the doctrine of

inalienability rests solely on executive or legislative act, there is no common law

principle limiting native title as an ownership interest. In the American

250 As noted earlier, this approach had lead both Kirby J and Callinan J to see native title as fragile

and defeasible to true common law rights: §4.3(e) A conclusion on the intersection as a process to

deny full respect to native title. 251 Nireaha Tamaki at 562: “Her Majesty the exclusive right of pre-emption over such lands as the

proprietors thereof might be disposed to alienate at such prices as might be agreed between the

respective proprietors and persons appointed by Her Majesty to treat with them in that behalf.”

Mabo at 88 per Deane and Gaudron JJ; Johnson v McIntosh at 585. The Nonintercourse Act

described the original States as “having the right of pre-emption to such lands". 252 Ngati Apa at [213] per Tipping J. 253 Symonds at 391, per Chapman J: “The legal doctrine as to the exclusive right of the Queen to

extinguish the Native title... operates only as a restraint upon the purchasing capacity of the

Queen’s European subjects, leaving the Natives to deal among themselves, as freely as before the

commencement of our intercourse with them.” The Maori right to grant leases over Maori title land

is remains: §2.2(a)(i) Maori title as a property right. 254 Ngati Apa at [15] per Elias CJ: “The Crown’s right of pre-emption enabled it to regulate

alienation of land in exercise of the rights of sovereignty, not property.”


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Colonies,255 and after the American Revolution in the USA,256 and in Australia,257

Canada258 and New Zealand259 there were executive or legislative acts prohibiting

direct sales justified on the basis of protecting Aboriginal property against “great

Frauds and Abuses”.260 In comparative jurisprudence the prohibition on direct

sales is also said to rest on the basis that it is a dictate of sovereignty261 or it is a

common law principle, and these propositions are explored below.

A capacity to alienate land under traditional law has been accepted in

Australia,262 Canada, New Zealand and the USA.263

(i) US jurisprudence distinguished: two laws and two sovereignties

There is a documented history of individuals, in their own right, purchasing land

directly from Aboriginal communities, in the American Colonies.264 These sales

were generally validated by later legislation. Before 1700, 12 of the 13 original

states had asserted the exclusive right to purchase land from Indians, Georgia

255 Set out in 3 Kent Commentaries (OW Holmes (ed) 12ed 1873) at 385-396. Weaver JC, The Great

Land Rush and the Making of the Modern World, 1650–1900 (Montreal and Kingston: McGill-

Queen's UP 2003) Table 4.1 at 136 lists such acts in the American Colonies: 1629 (New Netherlands)

to 1757 (Georgia); Canada 1761-1763; Southern Africa 1836; and New Zealand 1840. 256 Nonintercourse Act, s.4 257 In August 1835 Governor Bourke of New South Wales issued a proclamation declaring such

purchases of “vacant” lands within the colony to be void against the Crown, denying the validity of

John Batman’s 7 June 1835 purchase of land in Victoria. The Colonial Secretary, Lord Glenelg,

approving this proclamation cited protection as a reason, Aboriginal welfare would not be

promoted “by recognizing in them any right to alienate to private adventurers the Land of the

Colony”: 18 HRA (ser 1) 379. 258 Royal Proclamation 1763: see footnote 277 259 Treaty of Waitangi Article 2 set out in Chapter 2 footnote 16. 260 Article 4 of the Royal Proclamation 1763 set out in footnote 27. 261 §3.1(d) Native title to be reconciled with Crown sovereignty. 262 Mabo at 194 Toohey J noted: “But alienability itself is a relative concept and there was evidence

in at least one of the claims made under the Land Rights Act of land being “given” by the few

remaining survivors of one group to another group: see the Report by the Aboriginal Land

Commissioner, Alligator Rivers Stage II land claim, ) (1981), pars 118, 119.” Similarly Gumana v

Northern Territory [2005] FCA 50 at [217]; Wandarang, Alawa, Marra and Ngalakan Peoples v

Northern Territory [2000] FCA 923 at [47]-[52]. In Mabo Brennan J at 21-22 noted alienation of

limited interests in land: “they absolutely refuse to sell their land at any price, but rent small

portions to the beche-de-mer men and others.” 263 Pacific Canada: The possibility of a communal change in traditional ownership is recognised in

Pacific Canada in the exchange in Calder at 372-374 between the trial judge and anthropologist

Duff: “The owners in this sense had certain rights of alienation. They could give up the tract of

land, lose it in warfare, but in practice it would not go to anybody outside of the tribe, that is, a

tract of Nishga land might change hands but it wouldn't go to other than a Nishga family.”

Similarly in Delgamuukw at [198] per La Forest J. Henderson J, “Mikmaw Tenure in Atlantic

Canada” (1995) 18 Dal LJ 196 argues that Mikmaw tenure is inalienable. New Zealand: Maori

customary land tenure recognized four methods of acquiring land: Discovery, Ancestry (take

tupuna), Conquest (take raupatu), Gift (take tuku); see Smith N, Native Custom and Law Affecting

Maori Land, (Wellington: Māori Purposes Fund Board, 1942). 264 In places such as New York, private land sales took place under the Dutch as early as 1629, and

continued after British control in 1664: Lincoln C, Constitutional History of New York from the

Beginning of the Colonial Period to the Year 1905 (Rochester, NY: Lawyers Co-operative Publishing

Co, 1906. Reprint. Buffalo, WS Hein, 1994) Volume 4, 152-174.


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following in 1757.265 After the Revolution, direct sales were prohibited by the

Nonintercourse Act. Yet the Marshall trilogy held that there was, and always had

been, a common law doctrine prohibiting direct sales,266 because the only right

acquired over Indian land by the imperial assertion of sovereignty was the

Crown’s (later federal government’s) “exclusive right” to purchase land the

Indians were willing to sell.267 Direct sales to individuals took place in

accordance with Indian law and affirmed the continuing existence of Indian law

and Indian title over the land:

The person who purchases lands from the Indians, within their territory,

incorporates himself with them, so far as respects the property purchased;

holds their title under their protection, and subject to their laws.268

Indian land was “governed simultaneously by two distinct legal regimes”.269

While Indian sovereignty remained over Indian land, “leases” in favour of

European settlers were granted under Indian law.270 This would be the result

where any indigenous lex loci continued.271 Only a sale to the federal government

could take land outside the Indian legal system. The Supreme Court noted that

its decision in Johnson v McIntosh involved “an inquiry … confined to the power

of Indians to give, and of private individuals to receive, a title which can be

sustained in the Courts of this country.” 272 But that inquiry dictated not only

consideration of “principles of abstract justice” but “principles …which our own

government has adopted in the particular case, and given us as the rule for our

decision”.273 The Court stated that the pragmatic needs of sovereignty meant the

direct sale of Indian lands other than to the federal government would not be

recognized under US law.

265 Lincoln C, cit at 164. 266 Worcester v Georgia at 544-545. In Oneida I at 678 the Supreme Court said that the

Nonintercourse Acts simply “put in statutory form what was or came to be the accepted rule–that

the extinguishment of Indian title required the consent of the United States.”. 267 Worcester v Georgia at 545: “the exclusive right of purchasing such lands as the natives were

willing to sell”. 268 Johnson v McIntosh, 594 per Marshall CJ. 269 Slattery B, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (Saskatoon: U

Saskatchewan Native Law Centre, 1983), 29. 270 Karsten P, Between Law and Custom: 'High' and 'Low' Legal Cultures in the Lands of the British

Diaspora – the United States, Canada, Australia, and New Zealand, 1600-1900 (Cambridge:

Cambridge UP, 2002) at 119-124. United States v Joseph 94 US 614, 619 (1876): “If the defendant is

on the lands of the pueblo, without the consent of the inhabitants, he may be ejected, or punished

civilly by a suit for trespass, according to the laws regulating such matters in the Territory. If he is

there with their consent or license, we know of no injury which the United States suffers by his

presence, nor any statute which he violates in that regard.” Such leases occurred both before and

after the Revolution. 271 Papua and New Guinea v Daera Guba (1973) 130 CLR 353 [Daera Guba] at 396: “The

Administrator took a lease of an area of about .875 acres which included the well from a group of

Papuans which included Daera Guba for the term of thirty years ..The lessors, eleven in all, were

described as of the village of Poreporena.” While the lease was held invalid because the land had

been ceded to the Crown in 1886, the capacity of the villagers to grant a lease over unceded land

was not doubted. 272 Johnson v McIntosh, 572 per Marshall CJ. 273 Johnson v McIntosh, 572 per Marshall CJ.


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So, too, with respect to the concomitant principle, that Indian inhabitants

are to be …deemed incapable of transferring the absolute title to others.

However the restriction may be opposed to natural right, and to the usages

of civilized nations, yet if it be indispensable to that system under which

the country has been settled, and be adapted to the actual condition of the

two people, it may, perhaps, be supported by reason, and certainly cannot

be rejected by Courts of justice.274

The US doctrine of inalienability rests on avowedly pragmatic considerations,

contrary to “natural right”. Marshall CJ distinguished between sales under

Indian law and sales taking land outside the Indian legal system. Direct sales

created interests in land under Indian law, and preserved Indian title as a right

under US law. The doctrine of inalienability was justified as a pragmatic common

law principle consistent with the subordination of Indian sovereignty, not as a

conceptualisation of Indian title as anything less than full title to land. European

discovery gave “the exclusive right to purchase, but did not found that right on a

denial of the right of the possessor to sell.” 275

(ii) The limitation on alienation: protecting Aboriginal property rights

While the need to protect the property rights of Aboriginal people against great

frauds and abuses by land speculators276 is the basis of executive or legislative

prohibitions against direct sales,277 in Delgamuukw it was seen as one justification

of a common law principle that native title is alienable only to the Crown.278

(iii) The limitation on alienation: controlling colonial settlement

The need to control settlement was stated by the High Court to be a justification

for the making of the Proclamation in Papua New Guinea “preventing any

persons other than the Crown from purchasing … any interest in land”.279 A

similar concern was expressed by the Colonial Office as a reason for denying the

274 Johnson v McIntosh, 591-592 per Marshall CJ. 275 Worcester v Georgia, 544 per Marshall CJ. 276 New Zealand: In Symonds at 391 per Chapman J. Canada: Guerin at 383 per Dickson J states that

policy basis for the requirement appearing in the Royal Proclamation as follows: “The purpose of

this surrender requirement is clearly to interpose the Crown between the Indians and prospective

purchasers or lessees of their land, so as to prevent the Indians from being exploited”. Similarly St.

Catherine's at 53-55. 277 Article 4 of the Royal Proclamation 1763: ““And whereas great Frauds and Abuses have been

committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the

great Dissatisfaction of the said Indians; In order, therefore, to prevent such Irregularities for the

future…We do…strictly enjoin and require, that no private Person do presume to make any

purchase from the Said Indians of any Lands reserved to the said Indians…but if … any of the said

Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us.” 278 See text accompanying footnote 289. 279 Daera Guba at 381. The court then said: “[T]he policy of the British Government ... was that …

there should be no disturbance of the Papuans in the enjoyment of their use of the land except in so

far as the Government might purchase land or acquire it .. to enable settlement to take place in a

controlled fashion”


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validity of the sale of Aboriginal land to John Batman’s association.280 Colonial

settlement is both the dispossession of Aboriginal communities from their land,

the dispossession by force if necessary, and the granting of exclusive possession

to European settlers. The scale of military force needed to enforce such sales

dictates that to control settlement is to exercise “sovereignty power”.281

(iv) The limitation on alienation: the Crown as the source of title

New Zealand and Canadian jurisprudence contain a common law principle that

because the Crown is the source of title with respect to those who do not possess

pre-existing rights in land, settlers have no legal capacity to acquire title to land

from native sellers. This rationale emphasises not a lack of native title holders’

capacity to sell, but a lack of settlers’ capacity to buy. 282

New Zealand jurisprudence

Symonds affirmed the doctrine of inalienability as based on the Treaty of

Waitangi “securing”283 a right of pre-emption in accordance with imperial

policy,284 but also proposed a wider doctrine for which Johnson v McIntosh and

Worcester v Georgia were cited as sources. Chapman J held that:

The rule “that the Queen has the exclusive right of extinguishing the Native

title to land,” is only one member of a wider rule, that the Queen has the

exclusive right of acquiring new territory, and that whatsoever the subject

may acquire, vests at once, as already stated, in the Queen. And this,

because in relation to the subjects, the Queen is the only source of title.285

280 Lord Glenelg's dispatch to Governor Bourke (18 HRA (ser 1) 379 to 381), in approving Bourke's

proclamation prohibiting direct sales, stated that it was the policy of the Crown itself to determine

where settlement takes place. He notes “the unauthorised settlements at Port Phillip”. The letter

sent from Bourke (18 HRA (ser 1) at 153-158) states his concerns as the “policy of allowing the

occupation of land so distant from the seat of government and other located parts of the colony”. 281 The effect of the “increasing unwillingness of Maori to sell land”, and the disputed land sale at

Waitara in 1859, resulted in war: Riseborough H and Hutton J, National Theme C: The Crown's

engagement with customary tenure in the 19th century (Wellington: Waitangi Tribunal, 1997)

Chapter 2, page 3. 282 The view of Toohey J in Mabo at 194; similarly McNeil common law at 230-235. 283 Symonds at 390 per Chapman J: “But for their protection, and for the sake of humanity, the

Government is bound to maintain, and the Courts to assert, the Queen's exclusive right to

extinguish it [ie native title]. It follows from what has been said, that in solemnly guaranteeing the

Native title, and in securing what is called the Queen's pre-emptive right, the Treaty of Waitangi,

confirmed by the Charter of the Colony, does not assert either in doctrine or in practice any thing

new and unsettled.” 284 The “valuable monopoly pre-emption provided” was seen as a hard won right under the Treaty

of Waitangi: Daamen R, National Theme D: The Crown’s Right of Pre-Emption and Fitzroy’s

Waiver Purchases (Wellington: Waitangi Tribunal 1998) at 9, drawing on Burns P, Fatal Success: A

History of the New Zealand Company (Auckland: Heinemann Reed, 1989) 72–92. 285 Symonds at 390 per Chapman J: “If care be taken to purchase off the true owners, and to get in

all outstanding claims, the purchases are good as against the Native seller, but not against the

Crown. In like manner, though discovery followed by occupation vests nothing in the subject, yet it

is good against all the world except the Queen who takes. All that the law predicates of such


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The legal doctrine as to the exclusive right of the Queen to extinguish the

Native title... operates only as a restraint upon the purchasing capacity of

the Queen’s European subjects.286

Individual purchases could not extinguish native title, only Crown purchase

could. This approach was consistent with US jurisprudence.

Canadian jurisprudence

In Canadian jurisprudence, native title as alienable only to the Crown was once

supported by doctrine that Crown the granted native title, and native title

holders “surrendered” that right.287 At first, modern Canadian jurisprudence in

Guerin and Van der Peet affirmed the Royal Proclamation (and later legislative

acts) as the sole source of the prohibition on direct sales, such acts merely

regulating the ability of Aboriginal communities “to sell their land directly”288 by

interposing an intermediary. However, as the Royal Proclamation did not extend

to British Columbia, Lamer CJ in Delgamuukw offered a new suggestion:

I have suggested above that the inalienability of aboriginal lands is, at least

in part, a function of the common law principle that settlers in colonies

must derive their title from Crown grant and, therefore, cannot acquire title

through purchase from aboriginal inhabitants. It is also, again only in part,

a function of a general policy “to ensure that Indians are not dispossessed

of their entitlements”.289

There was, in fact, no prior discussion of the Crown as source of title. 290 In the

absence of any reasoning to support the adoption of the principle of the Crown

as source of title in Canadian jurisprudence, only New Zealand jurisprudence

provides an explanation of the Crown as source of title.

acquisitions is that they are null and void as against the Crown: and why? because “the Queen is

the exclusive source of title.” 286 Symonds at 391 per Chapman J. 287 §2.2(a)(ii) Aboriginal title as a property right. 288 Guerin at 340 per Dickson J: “The purpose of this surrender requirement is clearly to interpose

the Crown between the Indians and prospective purchasers or lessees of their land, so as to prevent

the Indians from being exploited.” Van der Peet at [270] per McLachlin J (diss): “The Royal

Proclamation of 1763…stipulated that aboriginal people not be permitted to sell their land directly

but only through the intermediary of the Crown.” 289 Delgamuukw at [129]. At [128]-129] Lamer CJ offered an additional suggestion: “[I]n my view,

lands subject to aboriginal title cannot be put to such uses as may be irreconcilable with … the

relationship that the particular group has had with the land … [T]here will exist a special bond

between the group and the land in question such that the land will be part of the definition of the

group's distinctive culture…It is for this reason also that lands held by virtue of aboriginal title may

not be alienated. Alienation would bring to an end the entitlement of the aboriginal people to

occupy the land and would terminate their relationship with it.” 290 Prior to this passage, in Delgamuukw Lamer CJ does not refer to “common law principle”,

“purchase”, “settlers”, “colonies”, “derive”, “title” or “Crown grant” at all.


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Conclusion

The doctrine of the Crown as source of title, adopted in New Zealand, and more

recently in Canadian jurisprudence, is a complete explanation of why native title

is alienable only to the Crown. The doctrine does not seek to explain the

proprietary nature of native title, only the incapacity of colonial settlers, under

colonial law, to acquire title by direct purchase from Aboriginal communities. In

the absence of such a doctrine, or the absence of executive or legislative acts

creating such a doctrine, colonial law would not restrain the alienation of the

property right of native title.

(v) The limitation on alienation as explained in Mabo: an affirmation of native title as

property

In New South Wales, direct purchases of Aboriginal land by “treaty, bargain and

contract” were declared “void and of no effect against the rights of the Crown”

by Proclamation in 1835.291 Colonial Office legal opinion considered such sales

valid with the consent of the Crown.292 However, in Mabo the Proclamation was

not cited as a source for the doctrine that native title was alienable only to the

Crown.

Brennan J: native title as an inalienable property right

In Mabo, Brennan J held that after sovereignty, native title was both inalienable

“by the common law”, and alienable “only [to] the Crown”:

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. … The common law

cannot enforce as a proprietary interest the rights of a putative alienee

whose title is not created either under a law which was enforceable against

the putative alienor at the time of the alienation and thereafter until the

change of sovereignty or under the common law. …

Such a right or interest can be acquired outside those laws and customs

only by the Crown [footnote: This result has been reached in other

jurisdictions, though for different reasons: see Symonds; Johnson v McIntosh;

St. Catherine's]. Once the Crown acquires sovereignty and the common law

becomes the law of the territory, the Crown's sovereignty over all land in

the territory carries the capacity to accept a surrender of native title. The

native title may be surrendered on purchase or surrendered voluntarily...293

291 18 HRA (ser 1) 811-812. The Colonial Secretary, approving the proclamation stated: it would

bode “ill for the real welfare of that helpless and unfortunate race by recognizing in them any right

to alienate to private adventurers the Land of the Colony”: ibid 379. 292 18 HRA (ser 1) 389. Dr Lushington in an opinion dated 18 January 1836 advised that the

purported grants of land by the Aborigines to John Batman’s association were “not valid without

the consent of the Crown”. 293 Mabo at 59-60 per Brennan J.


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Brennan J at first simply asserts that native title is not alienable to any “putative

alienee” (and this must include the Crown) “by the common law”. In the second

paragraph Brennan J qualifies the earlier paragraph: “sovereignty … carries the

capacity to accept a surrender of native title… on purchase”. The word

“purchase” connotes transfer of a property right to the Crown, and this is

consistent with Brennan J’s general equation in Mabo of native title to communal

ownership. It was expressly stated by Brennan J that native title as alienable only

to the Crown was consistent with it having a proprietary status. 294

Deane and Gaudron JJ: the personal right argument and the sovereignty

argument

In Mabo Deane and Gaudron JJ stated that “a right of pre-emption” flowed from

either of two bases. Firstly, as native title was a “personal” (ie non-proprietary)

right, a notion since rejected,295 it could be “surrendered” but not alienated.296

Secondly, flowing from the doctrine of “discovery” set out in Johnson v McIntosh,

and therefore adopting the US approach in this regard, native title could only be

alienated to the discoverer,297 a doctrine affirming the seller’s right to sell.

(vi) Conclusion: inalienability as consistent with native title as ownership

A Crown right of pre-emption, a limitation on the right of alienation of native

title by native title holders, fully respects native title as property and ownership.

In those jurisdictions that accord native title the status of ownership, alienation of

native title to the Crown is alienation of ownership. It results in the Crown

acquiring a perfect title to land. The proposition that native title is alienable only

to the Crown is wholly explained by the principle that, with respect to settlers,

the Crown is the source of title to land and therefore, under colonial law, settlers

can only acquire title to land from the Crown. The limitation on alienation does

not deny the capacity of native title holders to sell, or that the capacity of the

Crown to purchase. The limitation denies that colonial settlers have a capacity to

acquire rights in land, against the Crown, as those interests can only be created by

actual or presumed grant from the Crown, or by common law custom.

Axiomatically, colonial settlers cannot acquire rights in land by reason of

“immemorial” custom, which in the colonial context, is custom pre-existing the

assertion of sovereignty. 298

294 Mabo at 51 per Brennan J cited footnote 9. 295 §4.4(e)(4) Crown as the source of title. 296 Mabo at 110 per Deane and Gaudron JJ: “The rights of an Aboriginal tribe or clan entitled to the

benefit of a common law native title are personal only. The enjoyment of the rights can be varied

and dealt with under the traditional law or custom. The rights are not, however, assignable outside

the overall native system. They can be voluntarily extinguished by surrender to the Crown.” 297 Mabo at 88-89 per Deane and Gaudron JJ. 298 The words "time immemorial" in English law mean the time when King Richard I commenced to

reign in 1189: Mercer v Denne [1905] 2 Ch 538, 577. Looking at customs outside England, phrases

such as “beyond living memory” are used: Abinabina v Enyimadu [1953] AC 207. R v Oxfordshire


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County Council: ex parte Sunningwell Parish Council [2000] AC 335 at [6]: “the law may presume a

custom of such antiquity on evidence which a historian might regard as somewhat slender”.


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§4.5 The denial of full respect: a conclusion

The principle of full respect requires that, once traditional rights are perceived to

exist, they are to be faithfully translated into the most apt common law right. Full

respect for the common law right of native title as a form of title and ownership

has been denied in the way Australian jurisprudence has conceptualised native

title.

The task Australian jurisprudence has set itself is translating into common law

rights, rights and interests perceived to exist under traditional laws and customs.

Before Australian law can translate traditional rights it must have a strategy to

understand difference. This strategy is embodied in the language of full respect:

the recognition of rights and interests not necessarily known to the common law,

or consistent with the common law.

Having begun with the language of full respect for the perception of traditional

rights, Australian jurisprudence has invoked the notion of an intersection

between the Aboriginal normative system and the Australian legal system to

portray traditional rights, in their expression as the common law right of native

title, as lesser rights. The intersection determines which traditional rights will be

translated into rights under Australian law, and affirms the primacy of the

common law: traditional rights incapable of expression in common law terms

cannot be recognized as native title. What emerges from the intersection is a

common law right. However, rather than being a process respecting the

difference between Aboriginal and non-Aboriginal perspectives, the intersection

contextualises traditional law/traditional rights/native title, as if this were a

description of the one thing, as different to and subordinate to the common law

by newly created rules of right-recognition: a doctrine of acceptable custom; the

“skeletal principle”; and the “antithetical rights” principle. These principles of

right recognition have resulted in traditional rights, in their common law

expression, being either denied recognition or being seen as lesser rights under

Australian law. The native title right that enters the common law is compromised

in its capacity to compete with other common law rights.

Locating native title within the common law tradition means that the common

law expression of native title is guided by conceptions of “property”, “title” and

“ownership”. Comparative jurisprudence has recognized the communal right to

land as ownership or a property right akin to ownership, and sees native title as a

true form of title. The “effective control” or “exclusive possession” of land is

directly recognized as a common law title whose incidents include possession of

the land and all its resources. As a communal right of exclusionary control,

native title enters Australian law as a true form of ownership and title. While

Brennan J and Toohey J in Mabo equated the native title right to possess, occupy,

use and enjoy land to the exclusion of all others to “ownership”,299 post-Mabo

jurisprudence has declined equate “exclusive use of the land under traditional

299 §4.1(b)(i) The initial translation into: “communal ownership”.


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laws and customs [with] … ownership”.300 The language of difference, and the

metaphor of the bundle of rights, has made native title a compromised form of

ownership and title. The development of native title jurisprudence in a context of

partial extinguishment has obscured the recognition of the bundle of rights that

are native title (prior to extinguishment) as equal to, or greater than, the bundle

of rights possessed by holders of an estate in fee simple. The right of exclusionary

control has not been equated to a form of title or ownership. The

conceptualisation of native title as a bundle of property rights means that a

Crown grant of interests in land need not be examined in terms of the granting

rights over land already owned by another.

300 Bartlett Humpies at 14.

Chapter 5 – Radical title does not affect the capacity of native title holders to assert

property rights

Draft 17 December 2008 page 123

CHAPTER 5 –RADICAL TITLE DOES NOT AFFECT THE CAPACITY

OF NATIVE TITLE HOLDERS TO ASSERT PROPERTY RIGHTS

___________________________________________________________________

In Australian, New Zealand and Privy Council jurisprudence, native title is

described as a “burden” on the “radical title of the Crown”. There is a

confusion about the relationship between radical title and allodial title, and

between radical title and native title, implying that radical title is a proprietary

interest in land competing with or limiting native title. When properly

understood, radical title is consistent with full respect for native title as

ownership and property.

§5.1 Radical title: distinguishing imperium or dominium

Radical title as a manifestation of sovereignty (imperium) is to be distinguished

from Crown ownership of land under domestic law (allodial title) or proprietary

interests in land, manifestations of dominium.

§5.2 Radical title confers no proprietary interest in land

While early Privy Council jurisprudence could be interpreted as holding that

radical title was a proprietary interest, Wik confirmed that by holding radical

title, the Crown does not have allodial title, or an interest in land capable of

expanding to allodial title. The Crown’s property rights in land are not a

consequence of the Crown holding radical title, they must be otherwise acquired.

§5.3 The consequences of radical title as imperium

As radical title is not property, no proprietary interests in land can be granted out

of radical title. Until it is removed, native title as a common law right burdens the

sovereign authority of the Crown to deal with land.

§5.4 The parallel approach of US jurisprudence: fee title

US jurisprudence has developed a similar, jurisprudence: fee title as an executory

and contingent interest in land devoid of possessory content.

§5.5 Conclusion: radical title as an affirmation of native title as ownership and

property

Radical title does not affect the capacity of native title holders to assert property

rights, equivalent to ownership, against the Crown or the whole world. As native

title burdens radical title, the existence of radical title affirms the property rights

of native title holders against the Crown.


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§5.1 Radical title: distinguishing imperium and dominium

In Australian, New Zealand and Privy Council jurisprudence, native title is

described as a “burden” on the “radical title of the Crown”.1 Any

discussion of radical title indicates one thing, that it is not a certain

concept.2 The Crown’s sovereign “title” to colonial territory3 is described as

“radical title”, “final title” or “paramount title”, though sometimes

dominium,4 and sometimes imperium,5 is suggested by these words.

(a) Imperium and dominium

There is a fundamental difference between the sovereign title to territory,

and ownership of land, as explained in 1924 by Salmond in a passage

adopted in Mabo:

Territory is the subject-matter of the right of sovereignty or imperium

while property is the subject-matter of the right of ownership or

dominium. These two rights may or may not co-exist in the Crown in

1 Amodu Tijani at 403: “a mere qualification of or burden on the radical or final title of the

Sovereign”. Mabo at 52 per Brennan J: “the rights and interests in the land which they had

theretofore enjoyed under the customs of their community are seen to be a burden on the

radical title which the Crown acquires”, similarly 86-87 per Deane and Gaudron JJ; Wik at

127 per Toohey J; Yorta at [38] per Gleeson CJ, Gummow and Hayne JJ: “the radical title of

the Crown was “burdened” by native title rights”. 2 Secher U, “A Conceptual Analysis of the Origins, Application and Implications of the

Doctrine of Radical Title of the Crown in Australia: an Inhabited Settled Colony

(Unpublished PhD Thesis, UNSW, 2003) at x (Preface): “the only legal consequence of the

Crown’s acquisition of radical title which was authoritatively determined by the High

Court, was that it enabled native title, a source of title not derived from the doctrine of

tenure, to be accommodated within Australian land law”. 3 Roberts-Wray op cit at 625: “If a country is part of Her Majesty's dominions, the

sovereignty vested in her is of two kinds. The first is the power of government. The second

is title to the country”. The Crown’s sovereign title to the realm, or to the United Kingdom

of Great Britain, is not called radical title. It has no specific designation. Maitland FW,

Doomsday book and beyond (Cambridge: CUP, 1897) at 342: “The sovereign of Great

Britain … is not the owner of Great Britain.” 4 Mabo at 80 per Deane and Gaudron JJ: “Nonetheless, the underlying thesis of the English

law of real property remained that the radical title to (or ultimate ownership of) all land was

in the Crown”. Dawson J at 162: “the Crown took the paramount title to (though not actual

possession of) all the lands … so that all the lands were held of the Crown.” 5 Mabo at 180 per Toohey J: “In considering the consequences of the annexation of the

Islands, the distinction between sovereignty and title to or rights in land is crucial. The

distinction was blurred in English law because the sovereignty of the Crown over England

derived from the feudal notion that the King owned the land of that country. It was

ownership of the land that produced the theory of tenures, of obligations owed to the

Crown in return for an estate in land. .. [citing McNeil Common Law at 108]: “(t)he former is

mainly a matter of jurisdiction, involving questions of international and constitutional law,

whereas the latter is a matter of proprietary rights, which depend for the most part on the

municipal law of property. Moreover, acquisition of one by the Crown would not

necessarily involve acquisition of the other.” Calder at 352 per Hall J (diss): an Aboriginal

“right to occupy the lands …does not in any way deny the Crown's paramount title as it is

recognized by the law of nations”. New Zealand: footnote 56.


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respect of the same area. Land may be held by the Crown as territory

but not as property, or as property but not as territory, or in both

rights at the same time.6

Yet Salmond went on to say, in an explanation that confused the

proposition above, but was not quoted in Mabo:

In accordance with the principles of feudal law all England was

originally not merely the territory but also the property of the Crown;

and even when granted to subjects, those grantees are in legal theory

merely tenants in perpetuity of the Crown, the legal ownership of the

land remaining vested in the Crown. So, in accordance with this

principle, when a new colonial possession is acquired by the Crown

and is governed by English law, the title so acquired is not merely

territorial, but also proprietary. When New Zealand became a British

possession, it became not merely the Crown’s territory, but also the

Crown’s property, imperium and dominium being acquired and held

concurrently. 7

However, well before Salmond or Blackstone (see below), the separation

between sovereignty and property in English law had been completed.

Modern jurisprudence tells us that Salmond’s statement is wrong:

ownership of Maori land was not acquired when New Zealand became a

British possession.8 Similarly when the Crown acquired sovereignty over

the Australian colonies, it did not thereby acquire ownership:

It is only the fallacy of equating sovereignty and beneficial ownership

of land that gives rise to the notion that native title is extinguished by

the acquisition of sovereignty.9

To assert ownership would be to dispossess the holders of property rights

and would deny them equality before the law in the enjoyment of their

property rights.10

6 Salmond J op cit at 554, quoted in Mabo at 43 per Brennan J. Similarly Yarmirr at [371] per

Callinan J (diss); “rights of dominium (ownership or proprietary rights) and ... imperium.” 7 Salmond J, op cit at 554. 8 §2.2(a)(i) New Zealand: Maori title, especially Ngati Apa at [40] per Elias CJ: Maori title “is

a residual category of ownership not dependent upon title derived from the Crown.” 9 Mabo at 51 per Brennan J. 10 §3.3 The principle of equality before the law dictates the recognition of native title. Mabo

at 184 per Toohey J: “Even more startling is the consequence that, immediately on

annexation, all indigenous inhabitants became trespassers on the land on which they and

their ancestors had lived. That was not a consequence the common law dictated… being at

odds with basic values of the common law”.


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(b) Allodial title

Allodial title is absolute ownership of land, ownership without

acknowledgment of an overlord.11 Allodial title is not granted by the

Crown or state. When the state issues a land patent under an allodial

system, it merely creates a record of who has acquired the allodium.

It was the feudal history of English land law that, when the king granted an

interest in land, it was conditional upon the provision of feudal services by

the grantee to the king. Such grants combined notions of imperium and

dominium in that the grantee owed personal obligations directly to the

king.12 However, by Blackstone's time (1765) and the acquisition of

sovereignty over New South Wales (1788), feudal obligations had all but

disappeared and the conceptions of sovereignty and ownership had been

clearly separated. It was accepted that in English law only the king had

allodial title:

This allodial property no subject in England has; it being a received,

and now undeniable, principle in the law, that all the lands in

England are holden mediately or immediately of the king. The king

therefore only hath absolutum et directum dominium: but all subjects'

lands are in the nature of feodum or fee.…A subject therefore, hath

only the usufruct, and not the absolute, property of the soil; or, as Sir

Edward Coke expresses it, he hath dominium utile, but not dominium

directum.13

In England allodial title arises by legal fiction, but this fiction was not part

of the English law received into a colony with pre-colonial inhabitants,14

and the Crown must therefore acquire allodial title.

11 2 Blackstone Commentaries 47: “wholly independent, and held of no superior at all”: Kent

Commentaries, 485; “Held in free and absolute ownership”. Dobie WJ, Allodial Law

(Edinburgh: Stair Society, 1925): “The main characteristic of allodial property is that it

represents absolute ownership without service to, or acknowledgment of, any superior.

…allodial holdings are now confined to (a) the properties and superiorities of the Crown

…(b) udal lands in Orkney and Shetland ….” Mabo at 48 per Brennan J: “an absolute

beneficial title (an allodial title) to the land”. 12 See §6.1(a)(i) The feudal context of title to land. 13 2 Blackstone Commentaries 2-3; similarly Pollock F and Maitland F, History of English

Law Before the Time of Edward I [1898] (Cambridge: CUP 1968) at 232-240. What Coke said,

citing Bracton, was: “And therefore the King in this sense cannot be said to be a Tenant,

because he hath no superior but God Almightie;. …But though a Subject hath not properly

Directum, yet hath he utile Dominium.” (footnotes omitted) in Butler C (ed), Coke E, The

First Part of the Institutes of the Laws of England; or a Commentary upon Littleton (London:

J and WT Clarke 1832) [Coke on Littleton], 592. 14 §3.2(d) English law, modified to fully respect native title, becomes Australian law.


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§5.2 Radical title confers no proprietary interest

The expression “radical title” came into being to explain the nature of the

Crown’s right to colonial land. Radical title is a right devoid of proprietary

content.

(a) Radical title as dominium: the early jurisprudence

The idea of radical title as a proprietary interest in land is consistent with

dicta in early Privy Council cases. The search for the meaning of radical title

is, mistakenly we shall see, said to begin with St Catherine’s. That case

turned on the issue of whether certain lands were vested in the Province of

Ontario or the Dominion of Canada, as the resolution of that issue would

determine whether a timber harvesting licence granted by the Dominion

was valid. Pursuant to the Constitution Act 1867 (UK), the Province received

“the entire beneficial interest of the Crown in all lands …which at the time

of union were vested in the [Dominion] Crown ….subject to …any interest

… in the same”.15 The issue was whether the existence of Indian title over

those lands meant that the lands were not “vested in the [Dominion]

Crown” in 1867. The Dominion argued that it did not acquire the lands

until the 1873 land surrender agreement with the Salteaux, (North West

Angle Treaty, No 3).

In St Catherine’s, Lord Watson for the Privy Council stated the [Dominion]

Crown possessed a “present proprietary estate in the land, upon which the

Indian title was a mere burden”16 and went on:

There has been a great deal of learned discussion at the Bar with

respect to the precise quality of the Indian right, but their lordships

do not consider it necessary to an express an opinion upon the point.

It appears to them to be sufficient for the purposes of this case that

there has been all along vested in the Crown a substantial and

paramount estate, underlying the Indian title, which became a plenum

dominium whenever that title was surrendered or otherwise

extinguished.17

The Privy Council did not call this “present proprietary estate” radical title.

It was the later cases of Attorney-General of Quebec v Attorney-General of

15 St Catherine's at 57. Section 109 of the British North America Act 1867 (UK) (now

Constitution Act 1867) reads: “All Lands, Mines, Minerals and Royalties belonging to the

several Provinces of Canada ... at the Union ... shall belong to the several Provinces ... subject

to any trusts existing in respect thereof, and to any interest other than that of the Province in

the same.” Aboriginal title was held to be such an “interest”. 16 St Catherine's at 58, 17 St Catherine’s at 55.


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Canada,18 Amodu Tijani19 and Mabo20 that interpreted this passage as a

reference to radical title. Pre-Calder Canadian jurisprudence approached

native title on the basis that it was the grant of a permissive right over land

the Crown owned.21 That conclusion came about in this way. In St

Catherine's, the Supreme Court treated the Crown’s “title” to land as a right

of dominium, and did not call it radical title. The members of the Court held

or assumed that the Crown had ownership of the land, and offered various

justifications as to how the Crown came to acquire ownership.22 The Privy

Council held that the Crown had acquired “property” in the land by the

Treaty of Paris 1763,23 which ceded “sovereignty, property, and possession,

and all other rights” held by the Crown of France. The Crown therefore

acquired land over which, at the time, there was no Indian title, and eight

months later, granted (ie created) Indian title under the Royal Proclamation,

conferring a right that was “dependent upon the goodwill of the

sovereign”, and therefore a right that did not affect the substantial and

paramount “estate” of the Crown underlying Indian title.24

18 Attorney-General of Quebec v Attorney-General of Canada [1921] 1 AC 401 at 406 per

Duff J, quotations set out in footnote 26. 19 Amodu Tijani at 403 (text set out at page 129) where Viscount Haldane explains that:

“Their Lordships have elsewhere explained the principles of this kind in connection with

the Indian title to reserve lands in Canada” and St Catherine's is referred to. 20 Mabo at 47-48 (text set out at pages 133-34). 21 See Chapter 2 - Comparative jurisprudence: native title as a property right, 22 St Catherine's (1887) 13 SCR 577 at 599 per McRitchie CJ (Fournier J concurring): “[A]ll

ungranted lands in the province of Ontario belong to the crown as part of the public

domain, subject to the Indian right of occupancy”. At 608-9 per Strong J (diss) Indian title

“sufficed to protect the Indians …[prohibiting] alienation otherwise than to the Crown itself,

in whom the ultimate title was, in accordance with the English law of real property,

considered as vested”. Henry J at 639: “I think that after the conquest of this country all wild

lands, including those held by nomadic tribes of Indians, were the property of the crown.”

However, Gwynne J (diss) held at 674-75: “I am of opinion that the tract in question did not

become “public lands belonging to the Province of Ontario”… the Indians had an estate,

title, and interest in the tract …which precluded the Provincial Government from interfering

therewith in any manner, and which title, estate, and interest could only be divested and

extinguished by a cession made in solemn manner by the Indians to Her Majesty”. 23 St Catherine’s at 53: The fall of Quebec and Montréal was “followed in 1763 by the cession

to Great Britain of Canada with the sovereignty, property, and possession, and all other

rights, which had at any previous time been held required by the Crown of France.” St

Catherine's SCR 651 per Gwynne J (diss): “This argument was founded upon the contention,

that the Indians were never recognised by the French Kings as having any estate, right, or

title in the lands situate within the limits of the French possessions … and that the English

title to those lands being derived from the treaty of Paris of 1763, the title of the Crown of

England to the lands ceded by the French King by that treaty is the same as the title which

the Kings of France formerly had.” Similarly Attorney-General v Cain [1906] AC 542 at 545. 24 St Catherine's 53-54: After the Treaty of Paris “ a royal proclamation was issued …[by

which lands were] reserved to the said Indians… Their possession, such as it was, can only

be ascribed to the general provisions made by the royal proclamation. …[The argument that

the land] had never “been ceded to or purchased by” the Crown, [and therefore] the entire

property of the land remained with them … is, however, at variance with the terms of the

instrument, which shew that the tenure of the Indians was a personal and usufructuary

right, dependent upon the goodwill of the Sovereign.”


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St Catherine’s did not address the issue of the Crown asserting rights over

land subject to native title. The case stands for the proposition that, when

the Crown acquires absolute title, and later grants a personal right over that

land to indigenous inhabitants, that land can be described as “vested in the

Crown”. However, the grant of the personal right means that the Crown's

“estate” does not amount to a plenum dominium until native title is

extinguished. Both propositions, that the Crown acquired ownership of the

land under the Treaty of Paris, and that native title was created by the Royal

Proclamation, have subsequently been rejected. 25

Attorney-General of Quebec v Attorney-General of Canada labelled what was

discussed in St Catherine's as “radical title” without elaboration.26 The

approach in St Catherine’s was seemingly re-conceptualised in Amodu Tijani:

As a rule, in the various systems of native jurisprudence throughout

the Empire, there is no such full division between property and

possession as English lawyers are familiar with. A very usual form

of native title is that of a usufructuary right, which is a mere

qualification of or burden on the radical or final title of the

Sovereign where that exists. In such cases the title of the Sovereign

is a pure legal estate, to which beneficial rights may or may not be

attached. But this estate is qualified by a right of beneficial user

which may not assume definite forms analogous to estates, or may,

where it has assumed these, have derived them from the intrusion

of the mere analogy of English jurisprudence.27 (emphasis added)

The quotation is the most quoted explanation of the relationship between

native title and radical title in Mabo,28 and the significance of the italised

expressions is explained below. However, by calling radical title an

“estate”, the passage sees radical title as a proprietary right; though an

“estate” to which no beneficial rights may be attached. Proper

understanding of the statement depends on the particular context of the

case, but the statement continues the confusion between sovereign and

proprietary interests, and suggests that radical title is a propriety title

competing with native title.

25 §2.2(a)(ii) Canada: Aboriginal title. 26 Attorney-General of Quebec v Attorney-General of Canada [1921] 1 AC 401 at 406 per

Duff J: “The claim of Quebec is based upon the contention that at the date of Confederation

the radical title in these lands was vested in the Crown, subject to interest held in trust for

the benefit of the Indians, which, in the words used by Lord Watson in delivering

judgement in St Catherine's, was only ‘a personal and usufruct right’”. 27 Amodu Tijani at 403. 28 It is quoted twice in Mabo: at 49 per Brennan J (in full) and at 84 per Deane and Gaudron

JJ (abbreviated) and in Yarmirr at [12] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

Elias T, “Nigeria's Contribution to Colonial Law” (1951) 33 J Comp Leg and Int Law 49 at 50

calls the quotation the locus classicus of “colonial land rights”, citing five Privy Council

adoptions of it between 1926 and 1941.


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Amodu Tijani concerned the acquisition of sovereignty by treaty of cession,

and the Privy Council contemplated not the acquisition of proprietary

interests in land generally, but only those property rights over the island of

Lagos (needed for the construction of a port) that were personal to the

indigenous sovereign, and were expressly ceded by him to the Crown.29

Under the treaty, the Crown acquired imperium, and whatever rights of

dominium the king possessed. Viscount Haldane drew a distinction between

sovereignty and property:

The general words of the cession are construed as having related

primarily to sovereign rights only. …Where the cession passed any

proprietary rights they were rights which the ceding king possessed

beneficially.30

The assumption in St Catherine’s, that on cession the Crown acquired

proprietary interests in all land, was implicitly rejected. While the

distinction between sovereignty and property was affirmed, in this case,

both sovereign and property rights over the island of Lagos were acquired,

at the same time and by the same act. But even where all the king’s

property rights were ceded to the Crown, the Privy Council held:

In the light afforded by the narrative, it is not admissible to conclude

that the Crown is generally speaking entitled to the beneficial

ownership of the land as having so passed to the Crown as to

displace any presumptive title of the natives.31

As a communal title was held against the indigenous king under

indigenous law, the king’s property rights were limited.32 However, in

describing the type of interest that the Crown acquired from the indigenous

sovereign, the Privy Council used the language of radical title without

distinguishing between the jointly ceded sovereign and property rights:

29 Attorney-General (Southern Nigeria) v John Holt & Co (Liverpool) Ltd [1915] AC 599 at

609: The king did “grant and confirm unto the Queen of Great Britain, her heirs and

successors for ever, the port and island of Lagos, with all the rights, profits, territories, and

appurtenances whatsoever thereunto belonging, and as well the profits and revenue as the

direct, full, and absolute dominion and sovereignty of the said port, island, and premises,

with all the royalties thereof, freely, fully, entirely, and absolutely.” 30 Amodu Tijani at 407. 31 Amodu Tijani at 407. 32 In the prior case of Attorney-General (Southern Nigeria) v John Holt & Co (Liverpool) Ltd

[1915] AC 599 at 608 the Privy Council described the property right of the king as somewhat

unsettled: “There seems no reason to doubt the opinion of the learned Chief Justice that the

land had originally belonged to tribal communities, but that “during the decade between

1852 and 1862 the practice of alienation sprung into vogue, and another new feature, totally

foreign to native law, which knew not writing, was introduced in the shape of written

grants by the King of Lagos. The land in Lagos was originally attached to the stools of the

white cap chiefs, who were in no way subordinate to the early Kings”.


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Chief Justice Osborne laid down as regards the effect of the Cession

of 1861, that he was of opinion that “the ownership rights of private

landowners, including the families of the Idejos, were left entirely

unimpaired, and as freely exercisable after the Cession as before.” In

this view their Lordships concur. A mere change in sovereignty is not

to be presumed as meant to disturb rights of private owners; and the

general terms of a Cession are prima facie to be construed

accordingly.33

[However,] the learned Chief Justice … has failed to recognise the

real character of the title to land occupied by a native community.

That title …is prima facie based … on a communal usufructuary

occupation, which may be so complete as to reduce any radical right

in the Sovereign to one which only extends to comparatively limited

rights of administrative interference. In their opinion there is no

evidence that this kind of usufructuary title of the community was

disturbed in law, either when the Benin Kings conquered Lagos or

when the Cession to the British Crown took place in 1861.34

The Privy Council is discussing principles developed to distinguish a

communal title held against the indigenous sovereign under indigenous

law, from that sovereign’s own property rights under indigenous law,

rights which have been ceded to the Crown. If, as in English law,

indigenous law could be said to fully distinguish between property and

possession, the local king could be said to transfer “ownership” to Crown,

while the community retained its possession. As indigenous law did not

make this distinction, the king’s property right was burdened by the

communal “usufructuary” title, and this is why the burden of communal

title may reduce the Crown’s proprietary rights, acquired by cession, to

“limited rights of administrative interference”. Amodu Tijani is a discussion

about rights under indigenous law (“native jurisprudence”), not English

law (“English jurisprudence”), which was not introduced until two years

after the cession,35 and this is why the judgment is replete with warnings

against using common law property conceptions to understand interests in

land under indigenous law: the court is not describing a system of common

law jurisprudence but a “system of native jurisprudence” or “native law”.36

33 Amodu Tijani at 406. 34 Amodu Tijani at 409-10 35 The Treaty of Cession was signed on 6 August 1861. By Ordinance 3 of 1863 (Lagos),

English law, “so far as local circumstances permit”, was introduced. 36 Amodu Tijani at 402-03, text accompanying footnote 27. Sunmonu v Disu Raphael [1927]

AC 881 at 883 per Viscount Haldane: “It is very important to have clearly in mind what the

native law relating to the land in Lagos really is. … there have been various misconceptions

…but they were finally laid to rest by the decision in Amodu Tijani”. (emphasis added) In

Kwamina Kuma v Kofi Kuma (1938) 5 WAC 4 the Privy Council (Lord Atkin) applied the

Amodu Tijani passage to domestic disputes under indigenous law. In Bhe and Others v

Magistrate, Khayelitsha, 2005 (1) SA 580 at [146] the Constitutional Court of South Africa in

discussing succession to land, quoted the passage from Amodu Tijani and applied it to


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It follows that Amodu Tijani does not address a native title created by

Crown grant over land held by the Crown under allodial title, the situation

in St Catherine's. Amodu Tijani is describing the rights an indigenous

community holds against the indigenous sovereign under indigenous law,

and now holds, by reason of cession, against the Crown. If the indigenous

sovereign’s property right is burdened by the subjects’ “usufructuary”

rights, such rights, may be so extensive as to reduce the sovereign’s rights

to a pure legal “estate” to which no rights of dominium attach.

Both St Catherine's and Amodu Tijani involve the Crown’s actual or

assumed acquisition of property rights by cession. St Catherine's is not a

case about either radical title, or native title as a pre-existing right, but a

case about allodial title and the grant of a permissive occupancy out of

allodial title. Amodu Tijani is not a case about common law conceptions of

property, but about indigenous law as a direct source of law, and about

communal property rights under indigenous law. Jurisprudence which

rests on the basis that the Crown has acquired rights of property under

cession, cannot explain jurisprudence where no property rights have been

ceded by indigenous communities to the Crown.

(b) Radical title as imperium: Crown ownership not established by the

acquisition of radical title

The acquisition of sovereignty does not dictate Crown ownership of land or

the extinguishment of native title.37 Radical title as imperium rests on the

basis that by the assertion of sovereignty, the Crown is not asserting

property rights in land.

(i) Australian jurisprudence: radical title as a concomitant of sovereignty

In Mabo, Brennan J sourced his discussion of radical title to Amodu Tijani.38

Brennan J saw radical title as being, at the same time, two distinct things: “a

understanding indigenous law: “When dealing with indigenous law every attempt should

be made to avoid the tendency of construing indigenous law concepts in the light of

common law concepts.” (emphasis added) Similarly Alexkor Ltd v Richtersveld Community

2004 (5) SA 460 (CC) at [51]; Meek CK, Land Tenure and Land Administration in Nigeria

and the Cameroons (London: HMSO, 1957) 79. 37 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and

extinguishment of native title. 38 Mabo at 48-51. Brennan J to also refers to Nireaha Tamaki at 580. The Privy Council

discussion of “radical title” there does not assist. At 580 all that is stated is “That it not

appearing that the estate and interest of the Crown in the subject-matter of this suit, subject

to such native titles (if any) .. are being attacked by this proceeding, the Court has

jurisdiction to inquire whether as a matter of fact the land in dispute has been ceded by the

native owners to the Crown”. The term radical title does not appear. Brennan J also refers to

the following passage in Daera Guba; “I have also assumed, without deciding that the

declaration of the Protectorate or the annexation by the British Government did not vest in


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postulate of the doctrine of tenure and a concomitant of sovereignty”.39

Consistently with radical title as imperium, Brennan J said:

On acquisition of sovereignty over a particular part of Australia, the

Crown acquired a radical title to the land. . . Native title to land

survived the Crown’s acquisition of sovereignty and radical title. The

rights and privileges conferred by native title were unaffected by the

Crown’s acquisition of radical title but the acquisition of sovereignty

exposed native title to extinguishment by a valid exercise of

sovereign power.40

The approach sees radical title as a “concomitant of sovereignty”:

Recognition of the radical title of the Crown is quite consistent with

recognition of native title to land, for the radical title, without more, is

merely a logical postulate required to support the doctrine of tenure

(when the Crown has exercised its sovereign power to grant an

interest in land) and to support the plenary title of the Crown (when

the Crown has exercised its sovereign power to appropriate to itself

ownership of parcels of land within the Crown's territory).41

Brennan J is clear: radical title, “without more”, does not give the Crown

any proprietary interest in land.

However, if the Crown's title is merely a radical title - no more than a

postulate to support the exercise of sovereign power within the

familiar feudal framework of the common law - the problem of the

vesting of the absolute beneficial ownership of colonial land does not

arise: absolute and beneficial Crown ownership can be acquired, if at

all, by an exercise of the appropriate sovereign power.42

Wik confirmed the Mabo approach to radical title. Gummow J emphasised:

the Crown the ultimate title to all the land in Papua subject only to any usufructuary or

other rights of the Papuans, these to be determined by native custom.” Whatever “ultimate

title” means, the Crown did not possess ultimate title in Papua New Guinea. 39 Mabo at 48 per Brennan J. 40 Mabo at 69 per Brennan J, similarly 180 per Toohey J: “The position of the Crown as the

ultimate owner of land, the holder of the radical title, has persisted and is not really in issue

in these proceedings. What is in issue is the consequences that flow from that radical title.

…The blurring of the distinction between sovereignty and title to land should not obscure

the fact that …”(t)he former is mainly a matter of jurisdiction, involving questions of

international and constitutional law, whereas the latter is a matter of proprietary rights,

which depend for the most part on the municipal law of property. Moreover, acquisition of

one by the Crown would not necessarily involve acquisition of the other.” 41 Mabo at 50 per Brennan J. 42 Mabo at 54 per Brennan J.


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Radical title is that acquired upon the assumption of sovereignty (as

understood in the law of nations) or, rather, upon settlement (as

understood in that part of British constitutional law concerned with

Imperial expansion). Radical title links international and

constitutional law notions with those which support the private law

of proprietary rights and interests in land. Thus, radical title was “a

postulate to support the exercise of sovereign power within the

familiar feudal framework of the common law”. The framework

included the doctrine of tenures. Absolute and beneficial Crown

ownership, a plenum dominium, was established not by the acquisition

of radical title but by subsequent exercise of the authority of the

Crown.43 (citations omitted)

Toohey J was equally clear: “radical title does not of itself carry beneficial

ownership”,44 as was Kirby J: “Radical title is not a real title for property

purposes. It is more in the nature of a political notion and in that sense a

legal fiction. But property rights of any kind are not fictional.”45 In Yarmirr

the High Court explained the nature of radical title in terms of sovereignty:

The concept of radical title provides an explanation in legal theory of

how the two concepts of sovereignty over land and existing native

title rights and interests co-exist.46 (emphasis in original)

The separation of sovereignty and property was the starting point of the

joint majority judgment, which repeated the language of burden, and

added the language of native title as a compromised right:

The native title rights and interests could co-exist with that radical

title and, although inherently fragile, could, so long as they existed,

be seen as a burden on that radical title.47

(ii) Australian jurisprudence: radical title as a postulate of the doctrine of tenure

In Mabo Brennan J also described radical title as a “postulate of the doctrine

of tenure”, and Deane and Gaudron JJ held radical title to be a proprietary

interest in land. 47A Both these approaches are consistent with native title as

43 Wik at 186 per Gummow J. 44 Wik at 127 per Toohey J. 45 Wik at 234-35 per Kirby J: “Radical title is not a real title for property purposes. It is more

in the nature of a political notion and in that sense a legal fiction…Now a different source of

title must be accommodated by the recognition of the continuance of native title as a burden

on the Crown's radical title. Something more is needed to remove that burden, and to

extinguish the native title, than a mere exercise by the Crown of rights of dominium in

respect of the land.” 46 Yarmirr at [47] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 47 Yarmirr at [48] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 47A Mabo at 48 per Brennan J, at 86-87 per Deane and Gaudron JJ (text quoted on page 136)


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less than ownership, or as a lesser title to land than that possessed by the

Crown.

View of Brennan J (Radical title expanding to allodial title) rejected in Wik

On Brennan J’s approach, property rights to land comprised two bundles:

radical title, an undefined property right capable of expanding to absolute

ownership, and native tile, a property right which, although it might

appropriately be called ownership, was a right defeasible to skeletal

principles of the common law and, as a fragile right, could be displaced by

stronger common law rights. The proposition that radical title could be

expanded to a plenum dominium was first set out in Mabo by Brennan J:

If a lease be granted, the lessee acquires possession and the Crown

acquires the reversion expectant on the expiry of the term. The

Crown's title is thus expanded from the mere radical title and, on the

expiry of the term, becomes a plenum dominium.48

Brennan CJ (dissenting) repeated this approach in Wik: the alienation of a

leasehold “estate” vests the balance of allodial title in the Crown.49 In Wik,

all members of the High Court dealt with the argument that the grant of a

lease thereby created in the Crown a reversion expectant which expanded

radical title to absolute Crown ownership. Toohey J, Gaudron J, Gummow J

and Kirby J all rejected the argument that radical title could “expand” to a

plenum dominium.50 The argument was rejected for two reasons: as statutory

rights to land (akin to leasehold rights) are not granted out of, or require

the existence of, an estate in fee simple, allodial title or radical title, the

48 Mabo at 68 per Brennan J. 49 Wik at 91: “By exercise of a statutory power to alienate an estate in land, the Crown

creates, subject to statute, a tenure between the Crown and the alienee. It follows that,

subject to statute … where a leasehold estate is the only proprietary interest granted by the

Crown in a parcel of land and the lessee is in possession, a legal reversionary interest must

be vested in the Crown.” 50 Wik at 129 per Toohey J: “To speak, in relation to the Crown, of a reversion expectant …as

expanding the Crown's radical title to a plenum dominium is, in my respectful view, to

apply the concept of reversion to an unintended end. … Furthermore, if it is the reversion

which carries with it beneficial title, why is that title not there in the first place? …There is a

curious paradox involved in the proposition.” Wik at 155 per Gaudron J: “As a reversionary

interest only arises on the vesting of a leasehold estate, there is no basis for the contention

that, …on the grant of the first Mitchellton Lease, the Crown acquired a reversionary

interest…and its radical title was thereby expanded to full beneficial ownership.” Wik at

186-190 per Gummow J: “Accordingly, I would reject the submission for the State that ..

with respect to the grant of limited interests thereunder by the Crown, the necessary

consequence is the acquisition by the Crown of a reversion expectant on the cesser of that

interest, thereby generating for the Crown that full and beneficial ownership...” Wik at 233-

35 per Kirby J: “This theory ..[that] the “Crown's title is ... expanded from the mere radical

title” [citing Brennan J in Mabo at 68] … is not consistent with the analysis of the reasoning

of any of the Justices in Mabo [No 2]; nor with the Court's holding in that case. Nor is it

consistent with earlier analyses of the Privy Council.” (footnotes omitted)


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Crown grant of a statutory interest did not dictate that radical title was

thereby expanded to allodial title,51 and, in any event, the doctrine of tenure

was directed at the relationship between Crown and grantee, and if radical

title existed as a postulate of the doctrine of tenure, it did not explain the

existence of, or require the vesting of, allodial title in the Crown. 52

View of Deane and Gaudron JJ (radical title as proprietary title) abandoned

In Mabo Deane and Gaudron JJ, misapplying St Catherine's and Amodu

Tijani, stated that radical title was a “proprietary estate” in land:

the effect of an applicable assumption that that interest was respected

..would not be to preclude the vesting of radical title in the Crown. It

would be to reduce, qualify or burden the proprietary estate in land

which would otherwise have vested in the Crown, to the extent

which was necessary to recognize and protect the pre-existing native

interest.53

This approach was abandoned by Gaudron J in Wik.54

51 Toohey J at 128; “It has been said: "A reversion is the interest which remains in a grantor

who creates out of his own estate a lesser estate" …The discussion of reversion in the

standard texts invariably focuses on the holder of an estate in fee simple who grants some

lesser estate, usually a life estate or lease. But that is not the case here.” Kirby J at 244: “The

Land Acts regulate the grant of leases. They do not expressly confer on the Crown the estate

necessary to grant a lease. …At the time of the enactments, it was assumed that the Crown

exclusively enjoyed the power to grant leasehold and other interests simply as an attribute

of its sovereignty. Only now, following Mabo [No 2], has it become clear that, contrary to

the earlier understanding, with sovereignty came no more than a radical or paramount

title”. Gummow J at 189 began with the proposition that “all land in Queensland was to be

dealt with pursuant to statute. It was by legislation that interests in the land were to be

granted by the Crown” and concluded at 190, by citing Davies v Littlejohn that the rights in

the land “owe their origin and existence to the provisions of the statute.” 52 Toohey J at 128 (text accompanying footnote 14), In Mabo at 48-49, Brennan J had stated

the same proposition: “The doctrine of tenure applies to every Crown grant of an interest in

land, but not to rights and interests which do not owe their existence to a Crown grant.”

Allodial title does not owe its existence to Crown grant. In Mabo at 46 Brennan J had earlier

noted: “The land law of England is based on the doctrine of tenure. In English legal theory,

every parcel of land in England is held either mediately or immediately of the King who is

the Lord Paramount; the term "tenure" is used to signify the relationship between tenant

and lord not the relationship between tenant and land”. 53 Mabo at 86-87. 54 Wik at 156 Gaudron J stated, with respect to forfeited leases: “In other words, the effect of

s 135 was, in that event, to assimilate the previously alienated land to land in respect of

which the Crown had radical title, and not to land in respect of which it had beneficial

ownership”.


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(iii) New Zealand jurisprudence

New Zealand law accepts a separation between imperium and dominium,55

and sees “radical title” as an “notional” aspect of sovereignty.56 Symonds

described the “Crown’s right” against Maori, not as property, but as the

exclusive right to purchase such lands as the Maori were willing to sell.57

(iv) Canadian jurisprudence

Privy Council jurisprudence on appeal from Canada has followed St

Catherine's.58 However, since the conceptualisation in Calder of Aboriginal

title as a pre-existing right, the Supreme Court of Canada has not asserted

that the acquisition of sovereignty resulted in any proprietary interest in

land being vested in the Crown, or that the Treaty of Paris had this effect.

Title to land was acquired by land surrender agreements with First

Nations.59 In any event, Provincial jurisprudence has variously equated

radical title to imperium60 or dominium. 61

55 Ngati Apa at [26]-[27] per Elias CJ: “It was the argument …[that] [b]efore Crown grant no

customary property rights could be recognised because to do so would be to question the

sovereign power. Thus …Stout CJ asserted ..”All lands of the Colony belonged to the

Crown”. The error in this approach was…[the] equation of sovereignty with ownership

(conflating imperium and dominium).” 56 Ngati Apa at [29] – [30] per Elias CJ: “the radical title acquired by the Crown with

sovereignty … The radical title of the Crown is a technical and notional concept”. Te

Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 by Cooke P

at 23: “On the acquisition of the territory, whether by settlement, cession or annexation, the

colonising power acquires a radical or underlying title which goes with sovereignty.” 57 Symonds at 390-91 per Chapman J: see §4.4(e)(iv) New Zealand jurisprudence. 58 Viscount Haldane delivered judgment in each case and adopted his Amodu Tijani

interpretation of St Catherine's: Attorney-General of Quebec v Attorney-General of Canada

at 406. 59 In R v Marshall; R v Bernard at [95] the Court is clear that it was not the Treaty of Paris,

but land surrender treaties that transferred property rights to the Crown: “The Royal

Proclamation was concluded in the context of discussions about how to administer and

secure the territories acquired by Britain in the first Treaty of Paris in 1763 …Nova Scotia

was clearly land marked for settlement by the Imperial policy … the recently concluded

treaties with the Mi’kmaq of 1760-61 were designed to facilitate a “wave of European

settlement”. In R v Sioui [1990] 1 SCR 1025 at 1055 the Court held the various treaties with the

Indians reflected “’generous’ policy which …recognized that the Indians had certain ownership

rights over their land, it [the Crown] sought to establish trade with them which would rise

above the level of exploitation and give them a fair return.” 60 Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 (BCCA) at [18]; “This is

sometimes called the “allodial”, “underlying”, or “radical” title of the Crown”, similarly

Hughes v Governor etc Hudson's Bay (1998) 55 BCLR (3d) 377 (BCSC) at [24]. 61 Delgamuukw (1993) 104 DLR (4th) 470 (BCCA) at [794] “If aboriginal title is a burden on

the radical title of the Sovereign, and if the radical title is acquired on the assertion of

Sovereignty, then there is nothing in the taking of fee simple title by the Crown which

would free either the radical title or the subordinate fee simple estate from the burden

constituted by the aboriginal title.” Similarly Osoyoos Indian Band v Oliver (1999) 172 DLR

(4th) (BCCA) 589 at [38].


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§5.3 The Consequences of radical title as imperium

As radical title is a right of imperium devoid of proprietary content, the

holding of radical title, without more, cannot authorise the creation of

proprietary interests in land. Such interests can be created only by

legislation or out of the Crown’s allodial title. The common law right of

native title burdens the Crown’s sovereign rights with respect to land, until

that burden is removed.

(a) Radical title does not authorise the direct grant of estates

The Wik majority rejected the notion that radical title carried with it allodial

title or a proprietary interest capable of expanding to allodial title. The

Crown must first exercise sovereign power to acquire allodial title by

purchase or legislative acquisition from native tile holders, before the

Crown can grant an estate in fee simple out of that allodial title, as

exemplified in the law and practice in New Zealand and Treaty Canada.62

In Mabo and Wik, Brennan J did not assert that radical title “without more”

was a proprietary interest. He saw radical title as a right to which allodial

title would attach, but only once the “doctrine of tenure” had been otherwise

invoked by a grant of an estate:

Once a decision was made to accept a doctrine of tenure as defining

the rights of the grantee of the Crown, it was an essential postulate that

the Crown have such a “title” that would invest it with the character

of Paramount Lord in respect of the tenure created by grant, and

would attract the incidents appropriate to that tenure, in respect of the

grantee. The Crown was invested with the character of Paramount

Lord in the colonies by attributing to it a title called a radical title.63

(emphasis added)

In this passage Brennan J does not posit radical title as the repository out of

which the tenure is granted, and he is only going so far as to say that the

doctrine of tenure defines the rights of the grantee as against the Crown.

However, unlike the Wik majority, Brennan J saw the “doctrine of tenure”,

62 §2.2(b)(i) New Zealand: Extinguishment of Maori title and §2.2(b)(ii) Canada:

Extinguishment of Aboriginal title. 63 Mabo at 48 per Brennan J referring to Amodu Tijani at pp 403, 404, 407; Nireaha Tamaki at

580. Per Deane and Gaudron JJ at 81: The “practical effect of the vesting of radical title in the

Crown was merely to enable the English system of private ownership of estates held of the

Crown to be observed in the Colony.” Per Toohey J at 212: “However, the effect of the

fiction of past possession by the Crown is to secure the paramount lordship or radical title of

the Crown which is necessary for the operation of feudal land law. And since fictions in law

are only acknowledged “for some special purpose”(fn), that should be taken to be the extent

of the fiction. So far as the system of tenures is concerned, on which English land law is

based, no more is required.”


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as invoking the doctrine of allodial title and attaching allodial title to

radical title, 64 on the grant of rights defined by statute.

As Brennan J noted, the doctrine of tenure defines the relationship between

a grantor and grantee. It does not define the Crown’s title.65 With respect to

common law estates in land, the doctrine of tenure is invoked only when

the Crown grants an interest in land out of its allodial title. The doctrine of

tenure assumes that the Crown possesses an allodial title, not simply a

radical title, or, in Brennan J’s terminology, a radical title “without more”.

With respect to the Crown grant of statutory rights in land, the doctrine of

tenure and the doctrine of estates may be relevant to explain the meaning

of tenurial terms adopted in such grants, but only for the purpose of

defining the relationship between grantor and grantee. One must look

outside the doctrine of tenure to determine the extent to which the interest

subject to grant amounts to a right against the whole world. With respect to

common law estates, the in rem nature of the right granted is determined by

common law principle: the holding of allodial title and of rights carved out

of that allodial title under the Crown grant.66 As allodial title is a right

against the whole world, a grant carved out of this title may be a right

against the whole world. With respect to the grant of an interest under

legislation, the effect of the grant as against the whole world will depend

upon the legislative intention, including whether the grant is intended to

invade the rights of others.67 As the doctrines of tenure and estates exist to

define the relationship between grantor and grantee, axiomatically, they do

not address the nature of interests in land not derived from Crown grant:

allodial title, radical title and native title, or customary rights derived from

immemorial use.

The Crown cannot transfer its radical title to subject, nor, can it create an

interest in land otherwise than by the exercise of executive or legislative

authority. Radical title has no "incidents" of transmission as such.

(b) Radical title fully respects native title as ownership and property

Native title burdens radical title, and therefore the existence of the Crown’s

radical title affirms the property rights of native title holders against the

Crown:

Indeed, by asserting his native title, the appellant impliedly asserts

and relies on the radical title of the Crown as the basis of his own title

of occupancy or possession.68

64 §6.1(d)(v) Presumed acquisition of allodial title in the absence of other proprietors. 65 See footnote 52. 66 See §6.1(b) Crown must have interests in land before it can grant interests in land. 67 See §6.3(b) The Crown cannot by grant derogate from rights or privileges. 68 Nireaha Tamaki at 574.


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The rationale for the common law recognition of native title, the expression

that “provides an explanation”69 of the existence of native title, is that when

the radical title of the Crown was acquired upon sovereignty, pre-existing

“property” rights of indigenous peoples were not extinguished, but

“burdened” the Crown's “radical title”, and that burden was recognised by

the common law as native title.70 The rationale of radical title is to explain

the co-existence of Crown sovereignty, and the common law property right

of native title, not the co-existence of proprietary interests in land. Radical

title does not affect the capacity of native title holders to assert property

rights, equivalent to ownership, against the Crown or the whole world. The

“recognition of the radical title of the Crown is quite consistent with

recognition of native title to land”.71

(c) Native title as a burden on radical title and removal of that burden

The acquisition of sovereignty over the Australian Colonies was on the

basis of full respect for pre-existing rights. If native title involved the

burden of one sovereign right on another sovereign right, then traditional

legal principles dictate that no issues of domestic law are involved.72

However, native title is a common law right.

Before the acquisition of allodial title and any subsequent Crown grant,

there can be no invocation of the Crown as “Paramount Lord”. Radical title

as “a logical postulate required to support the doctrine of tenure [only

arises] (when the Crown has exercised its sovereign power to grant an

interest in land)”. 73 (emphasis added). Radical title is acquired on the

acquisition of sovereignty by conquest, cession or settlement. It is acquired

whether or not English law is introduced into the colonial lands. Radical

title, as an aspect of imperium, is a recognition that the Crown possesses a

"right", in truth a power or authority, over land within territorial limits,

rather than a right to the land akin to a property right. Common law rights

are “recognised as qualifying … sovereign rights, for purposes of

municipal law”.74 The property rights indigenous inhabitants held at the

moment of the imperial acquisition of sovereignty constrained the

sovereign title that the Crown acquired over colonial land.

Because sovereignty is held to carry with it a power to acquire or

extinguish native title, it is not clear how this sovereign power is burdened

69 See text accompanying footnote 46. 70 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and

extinguishment of native title. 71 Mabo at 50 per Brennan J. 72 Mabo at 31-32 per Brennan J, 81-82 per Deane and Gaudron JJ and 129-130 per Toohey J. 73 Mabo at 50 per Brennan J: see text accompanying footnote 41. 74 Yarmirr at [70] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: common law rights are

“recognised as qualifying …sovereign rights, for purposes of municipal law”.


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by the existence of native title, but the word “burden” must be given some

meaning. A burden indicates some form of limitation or restriction on the

sovereign power of the Crown. The extent of that burden is determined by

the common law, by the principle that common law rights are “recognised

as qualifying … sovereign rights, for purposes of municipal law.” Amodu

Tijani talked in terms of a burden significantly reducing an underlying

right to a "pure" right, or to rights of "administrative" interference. St

Catherine's, seeing native title as a personal (non-proprietary) right over

land held under allodial title, spoke of native title as a "mere burden",

implying that removal of the burden could be accomplished by a formal

rather than a substantial act. The burden of native title has been seen as

such that it could not be removed unless native title holders themselves

consented (the approach adopted in Worcester v Georgia and Symonds and

contemplated by Toohey J in Mabo75), or it could be removed only by the

doing of a sovereign act or the exercising of the sovereign power, the

current position in Canadian, New Zealand and American jurisprudence,76

and the approach endorsed in Mabo77.

In Australian jurisprudence, the removal of the burden is assisted by the

conception of native title as "inherently fragile", and therefore a "mere

burden", though one that remains until it is removed.

If native title is extinguished under domestic law, so that it no longer exists,

it must cease to be a burden on radical title. This is not a linking of allodial

title and radical title, as the same right to land, but a proposition that once

native title has been extinguished under domestic law, it ceases to exist for

all purposes. The common law right of native title ceases to burden the

sovereign power of the Crown, under domestic law.

75 Mabo at 192-193 per Toohey J, citing both in Worcester v Georgia and Symonds. 76 §2.2(b) Extinguishment of native title. 77 Mabo at 110-110 per Deane and Gaudron JJ


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§5.4 The parallel approach of US jurisprudence: fee title

While US jurisprudence does not use the term “radical title”, it has adopted

the conception of “fee title” to describe the government right to land under

US law. Indian title burdens both the fee title and any interest in land

granted. Because US jurisprudence accepted Indian ownership of the land

under domestic law, fee title was not allodial title. 78

In Johnson v McIntosh, Marshall CJ stated that “discovery gave exclusive

title”,79 and while his discussion of this “title” did not expressly distinguish

between sovereign title to territory and a title under domestic law, the

latter was implied, and later US jurisprudence accepted that the “title”

acquired on discovery included a title under domestic law called “fee

title”,80 also described as “ultimate fee”, “seisin in fee” or simply “title” or

“fee”.81 Sovereignty carried with it the power to grant interests in land

“subject only to the Indian right of occupancy.”82 Such interests were

granted out of the "seisin in fee".83 The grantee received a contingent or

executory title (“naked fee”84).

However, Marshall CJ adopted a different approach in Worcester v Georgia,

expressly denying that any property right vested in the discoverer: “these

grants [Royal charters] asserted a title against Europeans [ie European

nations] only, and were considered as blank paper so far as the rights of the

natives were concerned. …[Discovery] was an exclusive principle which

shut out the right of competition among those who had agreed to it; not

78 Tillamooks at 46 per Vinson CJ: "As against any but the sovereign, original Indian title

was accorded the protection of complete ownership; but it was vulnerable to affirmative

action by the sovereign.” Leavenworth, Lawrence, and Galveston Railroad Co v United

States 92 US 733, 742 (1875): “As long ago as Cherokee Nation v Georgia, this court said that

the Indians are acknowledged to have the unquestionable right to the lands they occupy,

until it shall be extinguished by a voluntary cession to the government.” 79 Johnson v McIntosh at 574. 80 Oneida I at 667: “fee title to the lands occupied by Indians when the colonists arrived

became vested in the sovereign-first the discovering European nation and later the original

States and the United States.” 81 Mitchel v United States 34 US 711, 745-46 (1835) “ultimate fee”; “the ultimate reversion in

fee”; Minter v Shirley 3 Miss Rep 376, 384 “the proprietors in fee”. 82 Johnson v McIntosh at 573: “While the different nations of Europe respected the right of

the natives, as occupants, they asserted the ultimate dominion to be in themselves; and

claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil,

while yet in possession of the natives. These grants have been understood by all, to convey a

title to the grantees, subject only to the Indian right of occupancy.” 83 Johnson v McIntosh at 574, 592, 595-96, the phrase first appearing in Fletcher v Peck 10 US

87, 142-43 (1810). Leavenworth, Lawrence, and Galveston Railroad Co v United States 92 US

733, 742 (1875) “seisin in fee on the part of the State”. Walters MD, “The Morality of

Aboriginal Law” (2006) 31 Queen's LJ 470 at 505: “Marshall … accepted that discovery gave

the Crown the same proprietary title ("seisin in fee") in aboriginal lands.” 84 Beecher v Wetherby 95 US 517, 525 (1877): “The grantee, it is true, would take only the

naked fee, and could not disturb the occupancy of the Indians: that occupancy could only be

interfered with or determined by the United States.”


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one which could annul the previous rights of those who had not agreed to

it. It regulated the right given by discovery among the European

discoverers; but could not affect the rights of those already in possession.”85

Worcester v Georgia held not only that the acquisition of sovereignty

respected “pre-existing rights”,86 but that it did not assert any interest in the

land of the Indians. The charters “were well understood to convey the title

which … they might rightfully convey, and no more. This was the exclusive

right of purchasing such lands as the natives were willing to sell. The

Crown could not be understood to grant what the Crown did not affect to

claim”. 87 The jurisprudence of Worcester v Georgia was clear: as against the

Indians, the Crown, and later the federal government, asserted imperium

but not dominium.

Thus two approaches to the status of grants over Indian land developed.

Firstly, without the prior extinguishment of Indian title, government grants

would be void or voidable – the Worcester v Georgia approach, adopted in a

long line of US jurisprudence.88 Alternatively, the government had an

interest in land (“seisin in fee”) burdened by the Indian right of occupation

until Indian title was otherwise lawfully extinguished. When the

government exercised its sovereign power to grant a “title”, all that was

granted was an interest subject to Indian title – the Johnson v McIntosh

approach. The grantee would receive a contingent or executory right to

land (for Indian title might never be extinguished) devoid of all rights of

possession or interference with Indian title. By granting this interest in

land, government did not create an interest that reduced any of the rights

held under the Indian title, but when Indian title was otherwise lawfully

extinguished, “possession …attache[d] itself to the fee without further

grant.”89

As the federal government continued to grant interests in Indian land to

non-Indians, fee title and Indian title were eventually reconciled by

returning to a modified version of the approach in Johnson v McIntosh. The

Supreme Court held that fee title was “encumbered”90 by Indian title, and

the sovereign power to grant contingent or executory interests remained

subject to Indian title. To declare that the federal government actually holds

“fee” to Indian lands, when it holds no rights of possession - the right of

85 Worcester v Georgia at 544-45. 86 Worcester v Georgia at 543: “It is difficult to comprehend the proposition that the

inhabitants of either quarter of the globe could have rightful original claims of dominion

over the inhabitants of the other, or over the lands they occupied; or that the discovery of

either by the other should give the discoverer rights in the country discovered which

annulled the pre-existing rights of its ancient possessors.” 87 Worcester v Georgia at 544-545 88 §2.2(b)(iii) No extinguishment by a grant of tenure. 89 United States v Cook 86 US 591, 593 (1873). 90 Clark v Smith 38 US 195, 201 (1839): “The ultimate fee (encumbered with the Indian right

of occupancy) was in the crown previous to the Revolution.”


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exclusive possession being held by the Indians - is either an “incoherence”91

if “fee” is to be treated as a term related to property, or the creation of a

new doctrine. The accommodation of Indian title and fee title was

interpreted by Cohen in this way:

either Indians had no title and no rights or the Federal land grants on

which much of our economy rested were void. … this theoretical

dilemma was neatly solved by Chief Justice Marshall's doctrine that

the Federal Government and the Indians both had exclusive title to

the same land at the same time. Thus a federal grant of Indian land

would convey an interest, but this interest would not become a

possessory interest until the possessory title of the Indians was

terminated…The Indians were protected. The grantees were

protected.92

Accordingly, US jurisprudence holds that grants, made at a time when the

government asserted sovereignty over Indian land, but Indian title had not

been extinguished, were indeed lawful, yet contingent or executory until

Indian title was otherwise extinguished by a clear and plain sovereign act.93

The fee title of government is a right that does not affect the capacity of the

holders of Indian title to assert ownership rights against the government,

colonial settlers or the whole world. Fee title neither denies Indian

ownership, nor asserts any possessory interest in Indian land. As such, fee

title parallels the concept of radical title. Unlike radical title, the holding of

fee title does authorise the direct grant of the naked fee, a non-possessory

contingent interest in land, and so fee title more closely approximates a

form of proprietary interest, as it enables the grant of a valuable right with

respect to land, a right that can be bought and sold, and can expand to an

estate in fee simple when Indian title is otherwise extinguished by sovereign

act.

91 Blumm M, “Retracing the Discovery Doctrine: Aboriginal Title, Tribal Sovereignty, and

Their Significance to Treaty-Making and Modern Natural Resources Policy in Indian

Country” (2004) 28 Vermont L Rev 713 at 729. Contrast Asher v Whitlock (1865) LR 1 QB 1

at 6 per Mellor J: “possession is prima facie evidence of seisin in fee”. 92 Cohen Original Indian Title op cit at 48-49. 93 Strickland R (ed), Felix Cohen’s Handbook of Federal Indian Law (Charlottesville: The

Mitchie Company 1982) at 489: “Naked fee title merely constitutes a reversionary interest

that becomes possessory only if Congress clearly and plainly extinguishes the Indian title”.


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§5.5 Conclusion: radical title as an affirmation of native title as

ownership and property

Native title burdens radical title, and therefore the existence of the Crown’s

radical title affirms the property rights of native title holders against the

Crown. The recognition of radical title is consistent with the recognition of

native title.

The rationale of radical title is to explain the co-existence of Crown

sovereignty, and the common law property right of native title. Common

law rights burden sovereign rights, and native title burdens radical title.

Until the burden of native title is removed, native title remains a burden on

the sovereign rights of the Crown. These propositions are not statements

about the relationship between proprietary interests in land. Radical title is

not a proprietary interest in land.

While early Privy Council jurisprudence could be interpreted as holding

that radical title was a proprietary interest, Wik confirmed that by holding

radical title, the Crown does not have allodial title, or an interest in land

capable of expanding to allodial title. Radical title does not authorise the

direct grant of proprietary interests in land and it does not compete with

native title. On the acquisition of sovereignty by settlement, the Crown has

no proprietary interests in land. Radical title does not affect the capacity of

native title holders to assert property rights, equivalent to ownership,

against the Crown or the whole world, under domestic law.


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EXTINGUISHMENT OF NATIVE TITLE

_____________________________________________________________

How then did Aboriginal communities lose their property rights to land?

Australian and comparative jurisprudence hold that native title was

extinguished by the sale or surrender of native title to the Crown, resulting

in the Crown acquiring a perfect title to land out of which it could grant

proprietary interests in land; or by enacting legislation evincing a clear and

plain intention to extinguish native title. But Australian jurisprudence

uniquely proposes that executive actions, done on the mistaken assumption

that the Crown owned the land, also extinguished native title, denying full

respect to native title as a property right under Australian law.

§6.1 The acquisition of allodial title

On sovereignty the Crown acquired radical title, but this title did not confer

allodial title, or any present proprietary interest in land capable of

expanding to allodial title. The Crown had to acquire allodial title. In New

Zealand, Treaty Canada and the American Colonies/USA, the Crown or

federal government acquired allodial title by agreement with native title

owners, or, alternatively and exceptionally, pursuant to express legislative

provision. Because the Crown in Australia has not acquired allodial title, it

cannot grant interests in land out of allodial title. It cannot carve a lesser

proprietary right out of an existing proprietary right. But if the Crown does

not own the land, who does? Australian jurisprudence has declined to

answer the ownership question because the answer is a fundamental

inconvenience for the Australian law of extinguishment of native title to

accommodate. Without a perfect title (a title perfect against native title

holders), the Crown cannot grant a perfect title to its subjects.

§6.2 Because native title is a property right, a clear and plain intention to

extinguish it is required

Native title is a property right and Australian law dictates that legislation is

presumed not to interfere with property rights in the absence of a clear and

plain intention to do so. The presumption has been applied in comparative

jurisprudence to the protection of native title, and affirmed as relevant and

applicable to native title in Australian jurisprudence. Yet the Australian

law of extinguishment of native title ignores the presumption without

explanation.


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§6.3 Extinguishment of native title in the absence of the acquisition of

allodial title or a clear and plain intention: the Crown grant of rights

to land

In the absence of the Crown acquiring ownership, or enacting legislation

evincing a clear and plain intention to acquire ownership or extinguish

native title, the Crown in the Australian Colonies granted interests in land

over which native title subsisted, that is, interests in land over which the

Crown had no allodial title; interests in land over which native title holders

had the only proprietary rights recognized by Australian law.

Australian jurisprudence discounts reasoning that both the doctrine of the

Crown as the source of title, and the doctrines of tenure and estates, exist

only to explain how Crown grantees can assert the rights contained in

Crown grants, against the Crown. Australian jurisprudence does not address

the issue that one must go to a separate doctrine (the doctrine of allodial

title) to explain why rights under a Crown grant can be asserted against the

world.

As a right, native title is protected by appropriate legal remedies against

physical interference. However, when it comes to interference by executive

or legislative act, native title is treated differently to all other legal rights,

and all other property rights. This difference of treatment is explained by

labelling native title a “fragile” right, consistently with the conception of

native title as a right subordinate to other common law rights. However,

the description of native title as fragile is not the conclusion of a process of

reasoning, but the a priori starting point for legal reasoning in which this

fragile right cannot compete on an equal footing with rights under an estate

in fee simple and other non-native title proprietary rights.

Grants under Crown lands legislation have created rights in land already

owned by a person other than the Crown. In justifying how the rights

under Crown grant prevail over inconsistent native title rights, or how

native title can be extinguished in a way that other property rights cannot,

Australian jurisprudence has compromised the protection of native title by

pragmatic concerns which cannot be supported by established legal

principle.

§6.4 Compensation for extinguishment of native title

Property rights can only be abrogated or taken without compensation if

relevant legislation manifests a clear and plain intention to this effect. No

such intention has been manifested in Australian legislation. Australian

jurisprudence has created a new doctrine by bare assertion: the

presumption of a right to compensation does not apply to native title.


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§6.1 The getting of allodial title

In Mabo Brennan J held that “absolute beneficial ownership can be

acquired, if at all, by an exercise of the appropriate sovereign power”. 1 In

accordance with colonial constitutional law, title to land could be acquired

from indigenous inhabitants by two means: purchase or compulsory

legislative acquisition. There was no purchase or surrender of native title in

the Australian Colonies, and thus it is only pursuant to legislation “by

which the Crown acquires full beneficial ownership of land previously

subject to native title”.2

(a) The Crown as source of title: a doctrine to justify the subject’s right

of ownership, not the Crown’s right to land

Since before Blackstone’s time, persons in peaceful occupation of land have

asserted ownership by proof of a documentary title to an estate in fee

simple, transferred to them by the predecessor in title, or by asserting a

right to succeed to an estate in fee simple (by adverse possession,

presumption of lost grant or possessory title). Why it is appropriate to call

the estate in fee simple “ownership” is explained by the doctrine of tenure

and the doctrine of estates: fee simple ownership confers an exclusionary

right to land.3 The principle of the Crown as the source of title explains how

the relevant predecessor in title came to have an estate in fee simple -

because it is presumed to derive ultimately from a Crown grant. The

Crown is the source of a grantee’s title. The doctrine of the Crown as source

of title validates a present right to land by a chain of title stretching back,

not to the acquisition of Crown allodial title, but to a fictional Crown grant

out of allodial title.

One must turn to a different doctrine to discover the source of the Crown’s

title. The king in England is presumed to have allodial title to land by legal

fiction.4 This fiction was not created for the purpose of vesting any

meaningful proprietary interest in the Crown, but to provide the

foundation for the chain of title of the present possessor of a documentary

title. The fiction of allodial title was not part of the law introduced into the

already inhabited Australian Colonies as it was contrary to: the principles

of colonial constitutional law governing the acquisition of sovereignty; the

1 Mabo at 54 per Brennan J. 2 Wik at 85 per Brennan CJ (diss). 3 Pollock and Maitland op cit 232-233: “The person whom we may call its owner, the person

who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep

all others off it, holds the land of the king either mediately or immediately.” 4 §6.1 (iv) The fictions of allodial title and presumed Crown grant support the doctrine

of tenure


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continuity doctrine of full respect for pre-existing rights as rights under

Australian law, and the principle of equality before the law. 5

Australian law was modified to the extent necessary to fully respect native

title. This meant that the Crown had to acquire allodial title.

Pre-Mabo Australian law held that the Crown acquired allodial title to land

by the acquisition of sovereignty. Mabo repudiated this doctrine. But Mabo

and subsequent jurisprudence affirmed the principle of the Crown as

source of title. The doctrine of tenure and the doctrine of estates are part of

the Australian law that recognises native title. 6 The Crown as source of title

does not purport to explain why native title is a common law property

right: the “doctrine of tenure applies to every Crown grant of an interest in

land, but not to rights and interests which do not owe their existence to a

Crown grant.”7 Accordingly, the principle of the Crown as source of title,

and the doctrines of tenure and estates, do not purport to explain radical

title, allodial title or native title, or interests in land arising under common

law custom.

The Crown as source of a grantee’s title rests on an assumption: before the

Crown can grant interests in land it must have interests in land to grant.

There must be a pre-existing foundation of Crown title, and without that

foundation, the Crown cannot grant a greater interest in land than it has. If

the Crown does not have a right in rem as against native title holders, it

cannot grant a right in rem as against native title holders.

(i) The feudal context of title to land

At the time of the Norman Conquest, Edward the Confessor was the

greatest private landowner in England, and William succeeded to his

rights. However, these landholdings did not cover the whole of England. In

England, the notion of property rights with respect to land emerged from

various customary and feudal rights and obligations.8 In early

jurisprudence, the distinction between Crown ownership of land and the

Crown’s sovereign rights with respect to subjects and land was not

generally made, as any distinction between property and governmental

power was only faintly perceived.9 There is no doubt that after the Norman

5 Chapter 3 - Full respect: The standard by which to assess the conceptualisation and

extinguishment of native title. 6 Wik at 186 per Gummow J. 7 Mabo at 48-49 per Brennan J. 8 Vinogradoff P, Feudalism (Cambridge: CUP, 1924) Volume 3, 458-487. 9 Cohen M, “Property and Sovereignty” (1927) 13 Cornell Law Rev 8 at 16: “Ownership of

the land and local political sovereignty were [in this period] inseparable”. Yarmirr at [51]

per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “As stated by Pollock and Maitland there

was no thought which could separate the lands of the nation from the lands of the

King…The distinction between private rights and governmental powers was faintly

perceived, if perceived at all…Since the governmental power was in the King, he assumed,

without objection, the right to do as he pleased with the land to which his governmental


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Conquest much private and public land became terra regis (land of the

king), whether by surrender or confiscation,10 and William proceeded to

grant various rights over land in return for services and the

acknowledgement of his rights of superiority. An immediate grantee (mesne

lord) would contract with a tenant to whom he would then grant further

rights of tenure in return for services (subinfeudation). During the period

when the distinction between sovereignty and property was blurred, land

was part of a pyramid of relationships, mutual rights and obligations, with

the king at the apex, and so discrete concepts of ownership or property

were “out of place”.11 Each immediate superior held a series of feudal

privileges over those immediately below which effectively determined, not

merely their rights to land, but their very destiny.12 The idea of the Crown

as source of property rights to land emerged in the 17th century as

feudalism faded.13 Some feudal privileges, a “seigniory” of residual rights,

remain as aspects of Crown prerogative or sovereignty over subjects, rather

than as proprietary interests in land held under fee simple ownership.

(ii) Doctrine of tenure

The device used by the king to administer the rights in land that he granted

to others (dominium utile) out of his allodial title (plenum dominium), but not

to administer his own land (demesne), was tenure. In return for various

goods or services, such as military service, the king would grant (feu) rights

to his lords. The result of subinfeudation was a chain of tenurial rights and

obligations, rather than simply a chain of “title”, with the king at the head.

power extended” (citations omitted). Similarly Maitland F, Domesday Book and Beyond

(Cambridge: CUP, 1897) at 101, 170, 240. 10 Allen J, Inquiry into the rise and growth of the Royal Prerogative in England (London:

Longman, 1849) at 152: The terra regis “was derived from a variety of sources. It

consisted in part of land that happened at the time of the [Domesday] survey t o be in

the King's hands by escheats or forfeitures from his Norman followers. It was

constituted in part of the lands of Saxon proprietors, which had been confiscated after

the Conquest and had not been granted away to subjects, But it was chiefly composed

of land that had been possessed by the Confessor in demesne.” 11 Wik at 186-87 per Gummow J: “The mediaeval notion of tenure was expressed by the

proposition that all land was held directly or indirectly of the Crown. This involved

relationships of reciprocal obligation between the respective parties at each level of the

feudal structure, at the peak of which stood the sovereign. In an understanding of these

relationships…”proprietary language is out of place” and the dominium of any particular

dominus “was always a relative thing”. The concept of ownership by the Crown of all land

is a modern one, and its adoption in legal theory may have been related to Imperial

expansion in the seventeenth and eighteenth centuries, well after the decline of feudalism.”

(footnotes omitted). 12 Cohen M, “Property and Sovereignty” op cit at 8-9: “the state long continued to be the

prince's estate so that even in the 18th century the Prince of Hesse could sell his subjects as

soldiers to the King of England.” 13 Wik at 186-87 per Gummow J cited footnote 11.


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(iii) Doctrine of estates

While the doctrine of tenure set out the rights with respect to land, the

doctrine of estates set out the duration of those rights, and allowed for the

creation of successive interests in land. The “doctrine of estates is a feudal

concept in order to explain the interests of those who held from the Crown,

not the ‘title’ of the Crown itself.”14 At the time of acquisition of sovereignty

over the Australian Colonies, the significant tenures were:

• The estate in fee simple,15 an estate equated to “ownership”16 and

usually referred to as “freehold title”;17

• The fee tail estate, which could only be transferred to a lineal

descendant, and if there were no lineal descendants upon the death of

the estate holder, the land reverted to the mesne lord;

• The life estate, granted only for the life of the estate holder;

• The estate for term of years (including a term subject to conditions

subsequent, or subject to executory limitations), such as leasehold

estates;.

• The tenancy at will (an estate that may be terminated immediately).

The estate in fee simple was granted at first by subinfeudation, and

following the statute Quia Emptores 1290 (UK) which eliminated

subinfeudation and allowed assignment of land without consent, by

transfer. An estate in fee simple was originally inalienable, then alienable

only inter vivos. As a result of the Statute of Wills 1540 (UK), it became

alienable under a will.18 In the event of a Crown grant of “an estate in fee

simple”, 19 the relationship between the Crown and grantee is defined by

the doctrine of tenure and estates, because the doctrines determine the only

possible meaning the expression “an estate in fee simple” can have.

14 Wik at 128 per Toohey J. 15 The estate in fee simple (including fee simple absolute , and the fee simple determinable,

fee simple conditional, and fee simple subject to an executory limitation). This is an estate

that has the potential of lasting forever. Walsingham’s Case (1573) 2 Plowd 547 at 555: “The

land itself is one thing and the estate in land is another thing: for an estate in the land is a

time in the land, … he who hath a fee simple in the land has a time in the land without end.” 16 Pollock and Maitland op cit footnote 3. Commonwealth v New South Wales (1923) 33 CLR

1 per Isaacs J at 47. “A fee simple is the most extensive in quantum, and the most absolute in

respect to the rights which it confers, of all estates known to the law. It confers, and since the

beginning of legal history it always has conferred, the lawful right to exercise over, upon,

and in respect to, the land, every act of ownership which can enter into the imagination”. 17 Fejo at [2] per Gleeson CJ, Gaudron, McHugh Gummow, Hayne and Callinan JJ. 18 Statute of Wills 1540 (UK) allowed landowners to devise two-thirds of their real property

by will. 19 The Statute of Tenures 1660 (UK) provided that all tenures were abolished except “free

and common socage”. The grant of an estate without limitation is the grant of an estate in

fee simple. Wik at 111 per Toohey J: “Socage is the only form of tenure that, for practical if

not theoretical purposes, has existed in this country.” It is “a tenure of an estate in fee simple

without incidents,” Similarly Native Title Act Case at 428 at footnote 175.


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The grant of an estate in fee simple is derivative, in that it is carved out of

the greater allodial title. The grant of a leasehold estate is also derivative, in

that it is carved out of either an allodial title or an estate in fee simple.

Because allodial title is an in rem right, the grant of an unlimited estate, or

an estate without a relevant limitation, carved out of the allodial title, can

amount to an in rem right, because “this original title provides the

foundation and source of all other titles.“20

(iv) The fictions of allodial title and presumed Crown grant support the doctrine

of tenure

The 17th century reality was that persons in exclusive possession of land

were transferring rights of possession to others. It is a fundamental

principle of English land law that no one can give what he or she does not

have (nemo dat quod non habet).21 The nemo dat principle left claims to title

open to challenge on the basis that a subject’s title was defective, in the

absence of proof of two things: a chain of actual grant stretching back to the

first Crown grant, and the Crown’s allodial title. The above problems lead

to the creation of the two universal fictions on which the land law of

England came to rest: the Crown had allodial title, and the Crown granted

a right to that land (presumed to be an estate in fee simple22) to a

predecessor in title at some time in the past:

[I]t became a fundamental maxim and necessary principle (though in

reality a mere fiction) of our English tenures “that the king is the

universal lord and original proprietor of all lands in his kingdom”;

and that no man doth or can possess any part of it, but what has,

mediately or immediately, been derived as a “gift from him, to be

held upon feodal services”.23

The Crown owned land and granted interests in land out of its allodial title.

The fictions were “necessary” to validate the rights of the present holders

of an estate in fee simple. The fictions were created, not to deprive subjects

in occupation of land of a right to possession, but to validate that right to

possession. The fictions affirmed the application of the nemo dat principle.

20 Wik at 172 per Gummow J. 21 Megarry and Wade op cit at 87. 22 Attorney-General (NSW) v Brown (1847) 1 Legge 312 at 318; Attorney-General (Ontario) v

Mercer (1883) 8 App Cas 767 at 771-772; Chitty Prerogatives at 211. 23 2 Blackstone Commentaries at 51-52. Doe d Wilson v Terry (1849) 1 Legge 505 at 508-509:

“In England ... the title of Sovereign to land is a fiction; or, where the Crown really owns

land, the property is enjoyed as that of a subject is.”


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(v) After grant of an estate in fee simple the Crown retains no proprietary

interests in land

Allodial title is the dominium aspect of the Crown’s rights (imperium and

dominium) with respect to land. Once the Crown grants an estate in fee

simple, it retains a “seigniory” of residual rights,24 which relevantly include

the rights of forfeiture for treason felony,25 escheat for want of heirs,26 and

wardship.27 These rights do not amount to a proprietary interest with

respect to the land itself. 28 If a fee simple exists, the Crown cannot grant a

competing estate in fee simple out of its “seigniory” of residual rights. In

Australian jurisprudence, escheat of an estate in fee simple is a transfer of

the estate previously granted, back to the Crown, and subject to

encumbrances created by the estate holder. It is not the creation of a new

estate in fee simple, or expansion of a present proprietary interest in the

Crown, nor a merger of the estate in fee simple with allodial title.29

The grant of an unconditional estate in fee simple gives the grantee a

vested property right. Once the Crown grants an estate in fee simple, it

24 The principal incidents of seigniory were an oath of fealty; a quit rent and the right of

escheat. The lord was liable to forfeit these rights if he neglected to protect the tenant. Case

of Tanistry (1608) 80 ER 517 at 524: If lands were not held of the Crown, the “king would

lose all the benefit of his seigniory paramount in this land”, rights such as “wardship or

escheat, or any manner of service, testifying his being the lord”. A quit rent, a charge on

freehold, has been prohibited since Quia Emptores: Megarry and Wade op cit at 1068. 25 Forfeiture of property, including escheat by reason of felony, is annexed to the subject’s

duties to the Crown, not to the land. Sandhurst Trustees Ltd v 72 Seventh Street Nominees

Pty Ltd (1998) 45 NSWLR 556 at 564: “lands escheated or were forfeited in circumstances in

which, in the feudal system, the tenant repudiated his obligations of personal loyalty by

treason or felony”. In Australia, escheats and forfeitures have been abolished by statute. 26 1 Coke on Littleton at 597-98 saw escheat to the Crown as a matter of prerogative: “For

upon an office found, the king shall have it by his prerogative, of whomsoever the land is

holden.” Coke sees the right of escheat in the mesne lord not as property, but as a right of an

heir presumptive: “A man hath Seigniorie as heire .. and the Tenancie doth escheat” (652).

Sandhurst Trustees Ltd op cit at 564: “Escheat relates only to real property, and another

branch of the law, with different sources but similar results, relates to leasehold lands,

which are treated as chattels and pass to the Crown as bona vacantia.” 27 Calvin’s Case (1609) 7 Co Rep 1, 5a, at 14a: “If a man hath a Ward by reason of a Seigniory,

and is Outlawed, he forfeiteth the Wardship to the King: But if a man hath the Wardship of

his own Son or Daughter, … he doth not forfeit this Wardship; for nature hath annexed it to

the person of the Father”. 28 Sandhurst Trustees Ltd op cit at 563: “The rights conferred by fee simple ownership are so

complete and the further rights of the Crown under its dominion or lordship are so vestigial

that it is commonplace to speak of the Crown's ownership as a fee simple, even when

emphasising its completeness.” Attorney-General of Ontario v Mercer (1883) 8 AC 767 (PC)

at 778: “escheat … fell within the class of rights reserved to the Provinces as “royalties”. 29 Sandhurst Trustees Ltd op cit at 565: On escheat “the Crown is the owner of the fee simple

estate” (at 565). “Escheat does not promote the interest escheated to something greater than

it was …On the present facts there is not in my opinion any merger. The two interests of the

Crown are of quite different kinds.” (at 566-67). Legislation such as the Property Law Act

1974 (Qld) s.21 is consistent with this analysis: “[a]ll tenures created by the Crown upon any

grant in fee simple ... shall be taken to be in free and common socage without any incident of

tenure for the benefit of the Crown.”


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cannot grant a competing estate in fee simple. At common law there is only

one estate in fee simple to any piece of land: “there cannot be two fees-

simple in the same land ... though the fee simple cannot perish, the title to

that estate may be discontinued as to one person, and resumed by

another.”30 There can be no competing estates in fee simple.31

Allodial title is a right of dominium, and the grant of an unconditional estate

in fee simple removes all rights of dominium from the Crown. The Crown

retains no rights of dominium, only rights of seignory. In this sense, once

granted, an estate in fee simple is “solitary and indestructible”.32 Allodial

title is not a bottomless pit out of which, in legal theory, an indefinite

number of estates in fee simple could be granted over the same land, in the

absence of some other restraining common law principle. Once the Crown

grants any proprietary interest in land, it cannot carve out another

inconsistent proprietary interest from its allodial title, because the Crown

no longer has a proprietary interest out of which such an estate can be

granted.

(vi) Fictional grants of an estate in fee simple

The fiction of allodial title, and the presumption of a direct or derivative

grant from the Crown to a predecessor in title, is the result of the need to

validate the title of the present holder of an estate in fee simple. Because the

Crown holds allodial title, no subject is allowed, in English law, to acquire a

right of exclusive possession by personal effort. Thus squatters (persons in

adverse possession), persons in long possession of land once known to be

owned by another (presumptive grantees), and persons in unchallenged

possession of land where prior ownership is unknown (possessory title

holders), are all deemed to have succeeded to the estate in fee simple held

by the former owner.

Adverse Possession

The fact of adverse possession destroys the presumption that the person in

peaceful occupation of land has been granted a title derived from the

Crown, because another possesses or is presumed to possess that title. The

30 Preston R, Estates (2ed, London: J & WT Clarke, 1820-27) Vol 1, at 423-424; similarly Butler

C, Fearne's Contingent Remainders and Executory Devises (10ed, London: Saunders and

Benning and Stevens & Norton, 1844), Vol 2 at 18: “the same hereditament cannot be the

subject of two interests, each relating to the same period, and each comprising the entire

legal seisin, property, or ownership for that period.” 31 Fletcher v Peck Johnson J (diss) at 147. “Since more than one fee simple could not exist in

the same land at the same time, the absolute proprietorship of the Indians excluded the

seisin in fee of another.” 32 Curwen N, “The Squatter's Interest at Common Law” (2000) Conveyancer and Property

Lawyer 528 at 538.


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doctrine of adverse possession33 results in a person possessing, at the end of

a limitation period, an estate in fee simple. The Crown is not deemed to

grant a new estate in fee simple at the end of the period. An encumbrance

that binds a prior estate in fee simple binds the estate in fee simple acquired

by adverse possession.34 When the ability to regain title “is barred, the right

and title of the real owner … are, in effect, transferred to the person, whose

possession is a bar”.35 The Crown has no new estate to grant to a person in

adverse possession, and while a person in adverse possession has a claim to

possession which the common law protects as if it were an estate in fee

simple, the person in adverse possession does not have the estate in fee

simple until the expiration of the limitation period.36

An alternative analysis is that the person in possession has the estate in fee

simple, the disseisee losing seisin and acquiring a right of entry in its

stead,37 on the basis that a possessor acquires an estate in fee simple

because the fullest estate known to the law is presumed until a lesser estate

is proved.38 In either case, there is only one estate in fee simple.

33 JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at [2]: the doctrine of adverse possession is

“no doubt to be justified as avoiding protracted uncertainty [about] where the title to land

lay.” 34 Re Nisbet and Potts' Contract [1905] 1 Ch 391 (reasoning endorsed by the Court of Appeal

[1906] 1 Ch 386) held that a purchaser from a squatter took the estate subject to the burden

of a restrictive covenant. Curwen op cit at 520 understands the case thus: “the estate claimed

by the squatter is the existing fee simple”. 35 The Incorporated Society v Richards (1841) 1 Dru & War 258 at 289. Similarly Scott v

Nixon (1843) 3 Dru & War 388 at 407 “has transferred the legal fee simple to the party in

possession”. 36 Wheeler v Baldwin (1934) 52 CLR 609 at 633 per Dixon J quoting Maitland, The Mystery of

Seisin “He who is seised, though he has no title to the seisin, can alienate the land …This

may make seisin look very much like ownership… Nevertheless we err if we begin to think

of seisin as ownership or any modification of ownership; after all it is but possession.”

Dixon J stated earlier at 632: “The question whether the applicant has a good documentary

title or a bad one is usually irrelevant to the acquisition of the possessory title…the caveator

may succeed either by showing that the documentary title has been extinguished by his

acquisition of a possessory title, or …by his impugning the validity of the applicant's

documentary title.” 37 Mabo at 209 per Toohey J citing Pollock and Wright op cit at 93-94; reflecting the view of

Lightwood, Possession of Land (London, 1894) at 274: “If there has been a disseisin of the

true owner, his estate is turned to a right of entry, and the fee is already vested in the

disseisor”. This is inconsistent with Ex parte Hamilton (1864) 3 SCR (NSW) (L) where it was

decided that the person claiming to be owner of land under documentary title might apply

to bring it under the Real Property Act, although another person was in possession

adversely to him, and contrary to the approach in Wheeler v Baldwin (1934) 52 CLR 609 at

633 of Dixon J referring to Ex parte Hamilton and then Perry v Clissold: “if the rightful

owner does not come forward and assert his title by process of law within the period

prescribed by the provisions of the Statute of Limitations applicable to the case, his right is

for ever extinguished, and the possessory owner acquires an absolute title” Megarry and

Wade op cit at 91-92 do talk of “two or more adverse estates”, but source the proposition to

“better title based on ...prior possession”, and to seisin, which can be accommodated by

Toohey J’s analysis of only one estate in fee simple existing at any one time. 38 Wheeler v Baldwin (1934) 52 CLR 609 at 632 per Dixon J


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Presumption of lost grant

Unlike adverse possession, the presumption of lost grant arose from a

presumption that if a person was using another's land “time out of

memory”, the use was permitted initially by a grant or reservation, now

lost. The presumption of an earlier but now lost grant makes good a title in

accordance with principle of the Crown as the source of title.39

Possessory Title

Proof of occupation is proof of possession. A person in unexplained

possession of land may be able to assert a better relative title to that land in

situations where no other person can claim possession pursuant to a

presumed or actual grant of tenure. Possession confers a “possessory title“

good against all the world except the true owner.40 The doctrine of

possessory title results in a person being presumed to hold a fictional

Crown grant of an estate in fee simple, and in the event of that person

bringing the land under the Torrens system, results in the actual grant of an

estate in fee simple.41

(vii) Conclusion

The Crown as source of title is a doctrine to justify the process by which a

person in possession of land holds, or is presumed to hold, an estate in fee

simple. The doctrines of tenure and estates explain the terms of that estate.

The doctrine of Crown as source of title assumes the prior acquisition of

allodial title by the Crown. The need to get allodial title, and actual getting

of allodial title, are examined in the next two sections. The doctrines of

tenure and estates dictate that there can only be one actual or presumed

Crown grant of estate in fee simple at any one time. This is because the

grant of an estate in fee simple removes or carves out fee simple ownership

from the Crown’s present proprietary interest, and thereafter the Crown

retains no meaningful proprietary interests in land under its allodial title,

only rights of seigniory. But the doctrine of Crown as source of title and

doctrines of tenure and estates can have no application to explain the rights

in land of those not deriving their interests by Crown grant, namely the

Crown, native title holders and customary right holders.

39 Doe d Devine v Wilson (1855) 10 Moo 502 at 523-528 in the Privy Council on appeal from

New South Wales, referred to in Mabo by Toohey J at 212: “Furthermore, the fiction of a lost

Crown grant answers the fiction of original Crown ownership and in so doing protects

titleholders.”(footnotes omitted) Holdsworth, op cit Vol 7 at 343. 40 Delgamuukw at [149]: “Professor McNeil has convincingly argued that at common law,

the fact of physical occupation is proof of possession at law, which in turn will ground title

to the land.” See generally McNeil Common Law. 41 Possessory title is a basis to bring land under the Torrens system. Wheeler v Baldwin

(1934) 52 CLR 609 at 631-633 per Dixon J.


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(b) Crown must have interests in land before it can grant interests in

land

The assumption of the Crown as the source of a grantee’s rights to land is

that the Crown has allodial title. in colonial constitutional jurisprudence,

before alienation of native title to the Crown, the Crown possesses only

radical title, a right devoid of proprietary content and a right burdened by

native title. Radical title is therefore an imperfect title to land. The Crown

has an imperfect root title that might be perfected by the subsequent sale or

surrender of the land by its true owners, or the lawful extinguishment of

native title. A doctrine that native title is alienable to the Crown affirms

indigenous land ownership,42 while forcing native title holders to sell their

land only to the Crown, and therefore the doctrine enables the Crown to

perfect its title to land. The doctrine that native title is inalienable other

than to the Crown was not an afterthought in the development of native

title jurisprudence in the USA and New Zealand. It was the very issue

before the Courts in both Johnson v McIntosh and Symonds.

Pursuant to the nemo dat principle, if the seller has a defective title, a

purchaser acquires only what the seller has, namely, a defective title. The

nemo dat principle is not a maxim designed to flesh out the intention of

parties in the case of ambiguities in a transaction. The principle is a

fundamental basis for any system of laws on which respect for existing

rights rests. The practical inconvenience of the principle has justified

various presumptions, but not its common law abolition.43 The law of

remedies has created legal principles to resolve situations where the nemo

dat principle adversely affects the rights of innocent third parties.44 If the

king attempts to grant an estate he does not have, the grant is void.45 If,

under indigenous law, native title holders “lease” their lands to the Crown,

the lease is invalid if they have previously ceded the land to the Crown.46

42 §4.4(e) Native title: alienation and ownership. 43 Reversal of the nemo dat principle, which necessitated the retrospective investigation of

title, is, of course, the basic reason for the introduction of the Torrens system of land title by

registration and payment of compensation to those suffering loss as a result. 44 Chippewas of Sarnia Band v Attorney General of Canada [2001] 1 CNLR 56 (Ont CA) at

[292]-[295] accepted the nemo dat principle as applicable to land grant in question, but held

it did not prevent the Court exercising its equitable jurisdiction with respect to the

appropriate remedy: “As we have already explained, where the validity of a patent is

impugned, established legal principles require that the interests of innocent third parties

must be considered.” 45 Case of Alton Woods (1600) 1 Co R 40b at 43b-46b, at 44a: “if the King be tenant for life,

and the King grants the land to another and his heirs, that grant is void, for the King taketh

upon him to grant a greater estate than he lawfully can grant”. Similarly Alcock v Cooke

(1829) 5 Bing 340 at 348 where a grant purported to grant an estate in possession which the

King did not have, because there was an unexpired lease over the same land. These cases

(discussed in McNeil K, “Extinguishment of Aboriginal Title in Canada: Treaties,

Legislation, and Judicial Discretion” (2002) 33 Ottawa L Rev 301 at 333-34) do concern grants

out of allodial title, but the grant of derivative rights. 46 Daera Guba Chapter 5 footnote 270.


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(i) Australian jurisprudence: the principle that the Crown must have title

before grant is affirmed

In Attorney General v Brown the Supreme Court of New South Wales stated:

that the waste lands of this Colony are, and ever have been, from the

time of its first settlement in 1788, in the Crown … they are … as his

or her property … and may now be effectually granted to subjects of

the Crown.47

As explained by Gummow J in Wik, this passage was a proposition that the

Crown must have title, before it can grant title:

Stephen CJ had emphasised in Attorney General v Brown that, at the

time of making a grant of land to a subject, the Crown must be

presumed to have a title to that land and that this original title

provides the foundation and source of all other titles. 48

Brennan J stated in Mabo:

It is implicit in the relationship of tenure that both lord and tenant

have an interest in the land: “The King had dominium directum, the

subject dominium utile. Absent a “dominium directum” in the Crown,

there would be no foundation for a tenure arising on the making of a

grant of land.49 (footnotes omitted)

The statement of Brennan J makes three points. Firstly, the Crown can only

grant an interest in land if it has an equal or greater interest in land, and

Brennan J considered that it was assumed by the doctrine of tenure

(“implicit”) that the Crown did have the necessary interest in land. The

legal question is what is the effect of this assumption. Secondly, tenure is a

“relationship” between the grantor and grantee. Finally, the statement sets

out Brennan J’s Mabo/Wik view of why native title is extinguished by the

grant of an estate in fee simple. The reason is that because the Crown has

granted an estate, the doctrine of tenure arises out of that grant, and

dictates (provides the “foundation”) that dominium directum vests in the

Crown, and this proprietary interest, not the estate immediately granted of

it, extinguishes native title.

47 Attorney General v Brown (1847) 1 Legge 312 at 316. 48 Wik at 172. 49 Mabo at 46 per Brennan J. In Brennan J’s quotation, plenum dominium = dominium

directum. The Crown does not retain any proprietary interest in land after grant of an estate

in fee simple: see §6.1(a)(v) After grant of an estate in fee simple the Crown retains no

proprietary interests in land


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However, addressing Brennan J’s first point, under feudal theory the

doctrine of tenure is not the source of the Crown’s proprietary interests in

land, the doctrine of allodial title is. Proprietary interests are carved out of

the Crown’s allodial title (presumed to exist as a matter of law in England,

but not so presumed in colonial jurisprudence). Until the Crown exercises

its sovereign power to acquire interests in land, as against native title

holders, neither the Crown nor persons deriving a title from the Crown

have such interests. With respect to the second point, it was argued in the

preceding section that the very purpose of the doctrines of tenure and

estates is to define the relationship between the Crown and grantee. With

respect to Brennan J’s final point, his approach to the extinguishment of

native title was rejected by the Wik majority and subsequent jurisprudence.

(ii) Udal law: the Crown must have title before grant

The proposition that the Crown must possess an interest in land before it

can grant an interest in land is illustrated by how the doctrine of tenure

interacts with Udal law in the mixed legal system of Scotland.

Udal law is the basis of land law in Orkney and Shetland, though it has

been overlaid by legislation based on common law notions of tenure.50

Smith v Lerwick Harbour Trustees51 concerned competing feudal and udal

titles. Udal title is an allodial title to land. It is relevant primarily with

respect to interests in the foreshore. It is common for udal titles to extend

“from the lowest of the ebb to the highest of the hill”52 and therefore to

include the foreshore. At common law, the Crown has property in the

foreshore, subject to certain public rights.53 In Smith v Lerwick Harbour

Trustees the pursuer held a udal title which included the foreshore. The

Crown had granted a foreshore title to the defenders, in exercise of the

Crown’s sovereignty (jus coronae). The Lord Ordinary stated that the

existence of udal title meant that all Crown property rights were excluded

from the foreshore, but the Crown's prerogative rights were not. While this

50 Dobey WJ, op cit at 32: “Udal Law came to Orkney and Shetland with the Norse emigrants

who began to colonise the islands in the seventh or eighth century …Norway ceded the

Hebrides to Scotland by the Treaty of Perth in 1266.” 51 Smith v Lerwick Harbour Trustees (1903) 5 F 680. 52 Smith v Lerwick Harbour Trustees (1903) 5 F 680 at per Lord Kinnear at 693. 53 The Crown has full ownership of the foreshore, and can grant property rights in the

foreshore to a third party: Shetland Salmon Farmers Assoc v Clyde Navigation Trs 1991 SLT

166. But the Crown cannot alienate its property rights in a way that prejudices the public's

rights of use:. Lord Advocate v Clyde Navigation Trs (1891) 19 R 174 at 182: “It is true, of

course, that the powers of proprietary right [in the Crown] are modified by certain public

uses which the community are entitled to enjoy”. Lord Advocate v Wemyss (1899) 2 F 1 at 8-

9: “I do not think that the Crown could, without the sanction of the Legislature, lawfully

convey any right or interest in it [the solum] which, if exercised by the grantee, might … in

any way interfere with the uses of navigation, or with any right in the public”.


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therefore permitted a grant of a right,54 as the pursuer had a udal title, the

right granted under Crown sovereignty to the defenders did not prevail

against udal title holders.55 In the Inner House, Lord Kinnear distinguished

between the Crown’s interest as protector of public rights over the

foreshore and the Crown's property rights in the foreshore. As regards the

public rights, the Crown’s sovereignty remained. In relation to the Crown's

property rights, he took the view that:

If the solum [of the Shetland Isles] as a whole is not originally the

property of the Crown, I know of no authority, and can see no reason,

for holding that part of it which is called the foreshore is Crown

property.56

Accordingly, where a udal title existed, the Crown did not have (and never

had) any proprietary rights. The fiction of allodial title was displaced. The

Crown could not grant an interest in the land because it had none to grant.

(iii) New Zealand jurisprudence: Crown must have title before grant

New Zealand jurisprudence, excluding the Wi Parata years, also holds that

the Crown must have title before it grants interests in land that are valid

against the Maori title holders. Sovereignty gave the Crown no rights of

property, it gave the Crown only a pre-emptive right to acquire property

from the Maori and Maori “dominion”, a right equated to an estate in fee

simple, was modified only to the extent necessary to accommodate the

right of pre-emption.57 As a matter of constitutional law, the Crown could

not waive its right of pre-emption by proclamation.58 As the only right

asserted against Maori was the right of pre-emption, it followed that, the

Crown having no proprietary interests in the land, it could grant interests

in land only after prior purchase of the land from the Maori.59 However,

54 Smith v Lerwick Harbour Trustees where Lord Kincairney at 684 refers to grant of “a right

to lands in Orkney and Shetland to which no other right could be produced”. 55 Smith v Lerwick Harbour Trustees per Lord Kincairney at 684. 56 Smith v Lerwick Harbour Trustees per Lord Kinnear at 692. 57 Symonds at 391: “Anciently, it seems to have been assumed, that notwithstanding the

rights of the Native race, and of course subject to such rights, the Crown, as against its own

subjects, had the full and absolute dominion over the soil, as a necessary consequence of

territorial jurisdiction. Strictly speaking, this is perhaps deducible from the principle of our

law. The assertion of the Queen's preemptive right supposes only a modified dominion as

residing in the Natives. But it is also a principle of our law that the freehold never can be in

abeyance; hence the full recognition of the modified title of the Natives, and its most careful

protection, is not theoretically inconsistent with the Queen's seisin in fee as against her

European subjects.” 58 Symonds at 392: “I am of opinion that it is not a fit subject of waiver either generally by

Proclamation, or specially by such a certificate as Mr McIntosh holds.” 59 Symonds at 392: “But for more than a century certainly, neither in the British American

colonies nor subsequently in the United States has it been the practice to permit any patent

to pass the public seal of the Colony of (sic) [or] States previous to the extinguishment of the

Native title…To part with the Crown's interest during the existence of the Native title,


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notwithstanding these principles, settlers, “European subjects”, could not

challenge the validity of any Crown grant because, as against them, the

Crown was the source of title. 60

(iv) Canadian jurisprudence: Crown must have title before grant

Similarly in Chippewas of Sarnia61 the Ontario Court of Appeal held that a

grant without prior surrender of native title was voidable. The facts were

these. In 1839, Malcolm Cameron purported to purchase lands by private

sale from three Chiefs of the Chippewas. There was no formal surrender of

the lands to the Crown. As private sale was prohibited by the Royal

Proclamation, the trial judge held that the transaction was “void and illegal

ab initio”.62 As there was no valid surrender of the lands to the Crown, the

Crown had no authority to patent the lands in 1853 to Cameron. The

purported patent was “void ab initio and of no force and effect”.63 The

Court of Appeal held the patent to be voidable:

In our view, the patent was valid on its face and continues to have

legal effect unless and until a court decides to exercise its discretion

to set it aside.64

The appropriate remedy was damages against the Crown.65 However, the

Court also said:

we accept the proposition that aboriginal title could be lost only by

surrender to the Crown, and that a surrender required a voluntary,

informed, communal decision to give up the land.66

leaving it to the grantee to acquire that title, is obviously fraught with evil to both races, and

with great inconvenience and perplexity to the colonial Governments.” 60 Symonds at 391 see footnote 57. 61 Chippewas of Sarnia Band v Attorney General of Canada [2001] 1 CNLR 56 (Ont CA),

leave to appeal denied [2001] 4 CNLR iv (Supreme Court). 62 Chippewas of Sarnia Band at [10]. 63 Chippewas of Sarnia Band at [11]. 64 Chippewas of Sarnia Band at [24]. And at [261]: “He held that the Cameron patent was

“void”. A “void” patent is said to be one that has no legal effect whatsoever, while a

“voidable” patent is one that does have effect unless and until it is set aside. Whatever its

merits for other purposes, the language of “void” and “voidable” seems to us to be not a

particularly apt or helpful analytic tool in the present context. From a remedial perspective,

the inherent discretion of the court is always in play. …the term “void” is “meaningless in

any absolute sense. Its meaning is relative, depending upon the court’s willingness to grant

relief in any particular situation.” … “a void act is in effect a valid act if the court will not

grant relief against it.” … Accordingly, for practical purposes, a patent that suffers from a

defect that renders it subject to attack will continue to exist and to have legal effect unless

and until a court decides to set it aside.” 65 Chippewas of Sarnia Band at [311] see §6.4 Compensation for extinguishment of native

title. 66 Chippewas of Sarnia Band at [199].


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(v) US jurisprudence distinguished

Prior to the extinguishment of Indian title, US jurisprudence holds that the

Crown/government possesses a fee title out of which it grants an executory

and contingent interest, “naked fee”, which confers no possessory interest

on the grantee, until Indian title is otherwise extinguished.67

(c) Acquisition of allodial title

(i) Acquisition of allodial title in England

Despite wholesale confiscations following the Norman Conquest, existing

landholders were obliged to register ownership of land in the Domesday

Book, and many landholders retained the pre-existing title to their land.68

Two main bases on which a doctrine of allodial ownership of all land in

England by the Crown (or king as a natural person) might rest have been

proposed: ownership by actual possession of the land (no longer

considered plausible)69 and ownership by legal fiction.70 By Blackstone’s

time, jurists considered the rule that the Crown owned all land in England

was a legal fiction.71

(ii) Acquisition of allodial title in the Australian Colonies

Mabo rejected the doctrine of absolute Crown ownership by acquisition of

sovereignty. Allodial title is not presumed, but is acquired by the actual

exercise of sovereign power. Brennan J rejected the justifications for the

acquisition of allodial title in previous Australian cases: 72

• land in a colony is “the patrimony of the nation”73 and the Crown

acquired ownership on behalf of the nation;

• ownership was part of the “Crown prerogative”; 74

67 §5.4 US jurisprudence distinguished: Indian title and fee title 68 Freeman EA, William the Conqueror (London: Macmillan and Co, 1913) at Chapter 8.

Maitland Domesday Book op cit at 153-154 notes that a number of landholders held title in

“alodium”; similarly Vinogradoff at 91 69 Coke Littleton 65a. Coke argued that the king had actual possession of all land at some

time in the past, but this argument is not plausible: McNeil Common Law 82-83. 70 McNeil Common Law 81-83; Lester op at 1191-1243 71 §6.1(a)(iv) The fictions of allodial title and presumed Crown grant support the doctrine of

tenure. 72 Mabo at 25 to 43. 73 Mabo at 52-53. 74 Mabo at 53-54. Seas and Submerged Lands Case at 438-439 per Stephen J: “That originally

the waste lands in the colonies were owned by the British Crown is not in doubt. Such

ownership may perhaps be regarded as springing from a prerogative right, proprietary in

nature”. New Zealand jurisprudence has expressly rejected this argument: Tamihana

Korokai v Solicitor-General (1912) 32 NZLR 321 (CA) at 352 per Cooper J: “Customary lands

owned by Natives which have not been ceded to His Majesty or acquired from the Native


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• the land was legally “desert and uninhabited” and therefore “there

would be no other proprietor”75 (emphasis in original).

The acquisition of ownership by acquisition of sovereignty argument was

the result of a confusion between imperium and dominium.76 Similarly Deane

and Gaudron JJ held that the Australian cases supporting the doctrine of

absolute Crown ownership were wrong.77

(iii) Acquisition of allodial title by exercise of prerogative power

Governor Phillip’s commission, and his instructions, like those of most

colonial governors, conferred a power to make direct land grants. But

grants of dominium could only be made if governors possessed something

to grant, and a mistaken assumption of Crown allodial title did not thereby

vest allodial title in the Crown. There is no known occurrence of the Crown

vesting allodial title in itself in the Australian Colonies pursuant to an

exercise of prerogative power.

(iv) Acquisition of allodial title by purchase

In Canada, New Zealand and the American Colonies/USA, the Crown or

federal government purchased the land from Aboriginal landholders.78 The

assumption that the Crown would end up with an allodial title to land, a

perfect title, by reason of the indigenous sale or surrender of native title

was the very reason why a doctrine of native title as alienable only to the

Crown existed. The doctrine was more than a mere right of pre-emption. It

was effectively a doctrine of forced sale of land to the Crown.79

In comparative jurisprudence, native title was purchased by the Crown

under domestic law. Did this mean that the Crown was purchasing an

allodial title? Comparative jurisprudence has approached the notion of

ownership at a level of conceptualisation that does not expressly answer

this question, beyond affirming the transfer of "ownership". In US

jurisprudence, the proposition that sovereignty gave only “the exclusive

right of purchasing such lands as the natives were willing to sell”80 is the

owners on behalf of His Majesty cannot, in my opinion, be said to be land vested in His

Majesty by right of his prerogative.” 75 Mabo at 48. 76 Mabo at 43-52. 77 Mabo at 102-104. Deane and Gaudron JJ stated at 103: “… in each of those four cases, the

reasoning supporting one or both of the broad propositions that New South Wales had been

unoccupied for practical purposes and that the unqualified legal and beneficial ownership

of all land in the Colony had vested in the Crown, consists of little more than bare

assertion.” 78 §2.2(b) Extinguishment of native title 79 §4.4(e) Native title as inalienable other than to the Crown. 80 Worcester v Georgia at 544-545. These Charters are set out and discussed in Lester at 370-

428.


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language of ownership and its transfer.81 Similarly, New Zealand and

Canadian jurisprudence talk of the sale or surrender of native title,

resulting in the Crown having ownership:

From the beginning of Crown colony government, it was accepted

that the entire country was owned by Maori according to their

customs and that until sold land continued to belong to them. 82

(v) Presumed acquisition of allodial title in the absence of other proprietors

In Mabo Brennan J83 and Deane and Gaudron JJ84 held that if native title and

therefore native title holders did not exist, the Crown’s radical title and the

“beneficial estate in land” would vest together and “undivided” in the

Crown. The idea of an allodial title vesting by sovereign assumption (in the

absence of express cession as in Amodu Tijani), is the very proposition that

Roberts-Wray described as “incredible”.85 Brennan J rested the proposition

on a “principle” that the Crown owns land in the absence of “other

proprietors”,86 but on the facts applicable to the Australian Colonies, that

principle was not invoked. However, the existence of such a principle is not

supported by the jurisprudence.

In colonial jurisprudence, the Crown must in every case prove its title, and

cannot claim a better title by putting others to proof of their title, a

proposition illustrated by In Re Southern Rhodesia,87 in which the Privy

Council held that Crown title to land is not presumed. By Orders in

Council, the Crown had granted “administrative control” over land in

Southern Rhodesia to the British South Africa Company which held that

administrative control under a conquered native sovereign who retained

“sovereignty, though his territory was under British influence”.88 The issue

81 See speech of Jefferson cited Chapter 2 footnote xx. 82 Ngati Apa at [37] per Elias CJ. Similarly R v McCormick (1859) 18 Upper Canada Queen's

Bench Reports 131, 133: “[Until] acquired by purchase from the aboriginal tribe to which it

had belonged [land was not] available for disposition by the crown government to third

parties.” 83 Mabo at 48: “If the land were desert and uninhabited, truly a terra nullius, the Crown

would take an absolute beneficial title (an allodial title) to the land for the reason given by

Stephen CJ in Attorney-General v Brown: there would be no other proprietor.” 84 Mabo at 86 per Deane and Gaudron JJ: “As has been seen, it must be accepted as settled

law that … the radical title to all land in the new Colony vested in the Crown. If there were

lands within the Colony in relation to which no pre-existing native interest existed, the

radical title of the Crown carried with it a full and unfettered proprietary estate. Put

differently, the radical title and the legal and beneficial estate were undivided and vested in

the Crown.” 85 Roberts-Wray op cit at 631. 86 Mabo at 48 and 60 per Brennan J relying on Williams v Attorney-General for New South

Wales (1913) 16 CLR 404 at 439 per Isaacs J: “It has always been a fixed principle of English

law that the Crown is the proprietor of all land for which no subject can show title”. 87 [1919] AC 211. 88 [1919] AC at 214.


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before the Privy Council was who owned certain lands. The Crown sought

a declaration of its own rights, rather than a mere holding that the

Company’s rights did not prevail against the Crown. The case raised

“positive questions as to ownership”.89 Did the Orders in Council vest

ownership in the Company? If not, did the Crown own the land, or were

the owners the successors to those who owned the land under the lex loci

before conquest? The Privy Council rejected the Company’s argument that

it owned the lands. While the Company had purported to dispose of land,

“the uncontested disposal of lands, as upon a grant for value, may be

indicative of ownership in the grantor or it may not”.90 In refusing to make

a declaration in favour of the Crown, Lord Sumner said:

The rights of the Crown . . . are equally matters of proof. …. if the

lands are not shown to belong to any private owner, the practical

conclusion would seem to be that they are the Crown’s, but here too,

unless it can be made to appear how and why they are the Crown’s,

the question of ownership cannot properly be answered in the

Crown’s favour.91

It was also argued that perhaps the “natives” might be the owners, but no

ruling was made:

As the argument stood it was really matter of conjecture to say what

the rights of the original “natives” were and who the present

“natives” are, who claim to be their successors in those rights.92

Similarly in Bristow v Cormican the House of Lords on appeal from Ireland,

rejected the proposition that the Crown is entitled by prerogative to land to

which no one else can show title,93 and in Tamihana Korokai v Solicitor-

89 [1919] AC at 230. 90 [1919] AC at 244. 91 [1919] AC at 243. 92 [1919] AC at 233. 93 Bristow v Cormican (1878) 3 App Cas 641 at 667 per Lord Blackburn: there is no

“authority for saying that, by the prerogative, the Crown was entitled to all lands to which

no one else can shew a title … this is so far from being the case”; similarly at 658 per Lord

Hatherley: “Clearly no one has a right to say that it became vested in the Crown because it

belonged to nobody else”. At 655-56 Lord Cairns LC said: it was “incumbent on the

Appellants, in order to make available their documentary title, to give some evidence of the

ownership or possession of the Crown at the beginning of that title”. The case involved an

alleged trespass on lands covered by the waters of Lough Neagh, and as evidence of title,

the appellants produced a grant from Charles II dated 1660. The court held that a Crown

grant, without evidence that the land had been the Crown's at the time of the grant, was not

evidence of ownership. at 667. at 667. The title of the Crown must be found by inquest of

office: 3 Blackstone Commentaries at 258: “an inquiry made by the king’s officer, his sheriff,

coroner, or escheator, virtute officii, or by writ sent to them for that purpose, or by

commissioners specially appointed, concerning any matter that entitles the king to the

possession of lands or tenements, goods or chattels.”


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General 94 the New Zealand Court of Appeal held that for the Crown to

claim title to any land, it had to show a formal act of acquisition. 95 The

Crown must prove its title to land. 96 If “the Crown seeks to recover

property and to oust the present possessors, it must make out its case just

like any other litigant”.97

(vi) Acquisition of allodial title by legislation

Legislation can vest allodial title in the Crown. This can occur because it is

clearly and plainly expressed to occur, or on the basis that the vesting of

allodial title in the Crown, free of native title, is a necessary implication.

The Queensland Coast Islands Declaratory Act 1985 (Qld) which “vested [title

to land] in the Crown in right of Queensland freed from all other rights”

clearly vested a title freed from native title.98 In New Zealand, legislation

was drafted on the basis that land only vested in the Crown on sale by

Maori, and only became subject to the disposing power of the Crown after

such sale.99

Prior to Mabo, Crown lands legislation simply assumed Crown allodial

title, rather than vesting title in the Crown. However, the inquiry into an

intention of pre-Mabo legislation to deal with allodial title, or with native

title is:

somewhat artificial when it is recalled that …the courts [treated] …

the country as if it were “desert uninhabited”. Bearing this perception

in mind, the true inference to be drawn - if not the certain fact - is that

94 Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321 (CA). 95 The case involved conflicting claims of Māori and the Crown to own Lake Rotorua. The

Crown claimed it owned the bed by prerogative right, and denied any Māori title, saying

that title had been abandoned, if it ever existed. The Court of Appeal did not decide

ownership, but affirmed the right of the Native Land Court to investigate title. It rejected the

Crown's assertion of ownership, saying that the Crown had to prove its title or produce a

valid Proclamation vesting the land in the Crown, not simply assert title. A negotiated

settlement was reached between the Crown and Te Arawa before the Land Court could

make a finding, and legislation enacted in 1922, under which the beds of most of the Lakes

vested in the Crown free of any Māori customary title, in return for annual compensation by

the Crown, with the sole right to fish for indigenous fish reserved for Māori. 96 Nireaha Tamaki at 576: “ “In a constitutional country the assertion of title by the Attorney-

General in a Court of Justice can be treated as pleading only, and requires to be supported

by evidence.” 97 Wallis v Solicitor-General for New Zealand [1903] AC 173 at 188. 98 See legislation and discussion in §3.3(b) Denial of native title as a denial of the right to

enjoy property contrary to the guarantee of equality before the law in the RDA . 99 Symonds at 394 Martin CJ said of the Land Claims Ordinance 1841 (NZ) that “everywhere

assumed that where the native owners have fairly and freely parted with their lands the

same at once vest in the Crown, and become subject wholly to the disposing power of the

Crown”. Ngati Apa at [38] per Elias CJ: “The land became subject to the disposing power of

the Crown by Crown grant only once customary ownership had been lawfully

extinguished”.


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the Aborigines and their title to land were ignored …Accordingly, as

Macfarlane JA observed ...:

One should assume that the object [of legislation] was to achieve

the desired result with as little disruption as possible, and without

affecting accrued rights and existing status any more than was

necessary.100 (emphasis added)

Accordingly, the Native Title Act Case held that the need to provide land for

settlers did not require legislation providing for the management of Crown

lands to be interpreted as extinguishing native title. In Mabo the majority

stated that general legislation permitting the management of Crown lands

was not be taken as extinguishing native title,101 and therefore did not effect

a vesting of allodial title in the Crown. Canadian jurisprudence is similar. 102

(d) Avoiding the ownership debate in Australia

Australian case-law and legislation has not established that the Crown

vested absolute beneficial ownership, allodial title, a plenum dominium or

any form of title or property right with respect to land, in itself. Wik did not

determine Crown ownership, but Wik implied that later jurisprudence

would explain how the Crown acquired allodial title:

Absolute and beneficial Crown ownership, a plenum dominium, was

established not by the acquisition of radical title but by subsequent

exercise of the authority of the Crown.103

Brennan J in Mabo is even clearer:

100 Native Title Act Case at 431-33 per Mason CJ, Brennan, Deane, Gaudron, Toohey,

McHugh JJ 101 Mabo at 111 per Deane and Gaudron JJ: “general waste lands (or Crown lands) legislation

is not to be construed, in the absence of clear and unambiguous words, as intended to apply

in a way which will extinguish or diminish rights under common law native title.” Similarly

Mabo at 196 per Toohey J: “It follows that traditional title may not be extinguished by

legislation that does no more than provide in general terms for the alienation of the waste

lands of the colony or Crown land.” Brennan J at 65-67 held that although Crown lands

legislation was founded on the assumption of absolute Crown ownership, such legislation

did not extinguish native title: Aboriginal people “were dispossessed by the Crown’s

exercise of its sovereign power”. 102 Canadian jurisprudence holds that Crown lands legislation does not effect a vesting of a

title in the Crown that extinguished native title. In Calder legislation and various

proclamations “declared that all lands in British Columbia and all mines and minerals

thereunder belonged to the Crown in fee.” Judson J at 167 held that native title been

extinguished as a result, however the contrary view of Hall J (diss) at 208 was confirmed in

Delgamuukw (1993) 104 DLR (4th) 470, 525-31 per Macfarlane JA, at 675 per Lambert JA. 103 Wik at 186 per Gummow J; similarly at 127 per Toohey J: “radical title does not of itself

carry beneficial ownership”; at 234-35 per Kirby J: “Something more is needed to remove

that burden, and to extinguish the native title, than a mere exercise by the Crown of rights of

dominium”.


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absolute beneficial ownership can be acquired, if at all, by an exercise

of the appropriate sovereign power.104

Fejo responded to the issue of Crown ownership by saying that, while

Australian law may have to address the issue of Crown ownership with

respect to the grant of a lease, it did not have to address the issue when the

Crown granted an estate in fee simple, because “[n]ative title is

extinguished by a grant in fee simple”:105

Similarly, although reference was made in argument to questions of

plenum dominium they are not questions that arise in this case. The

question in this case concerns the 1882 grant [of an estate in fee

simple], not any later lease of the land. The Crown having granted no

lease of the land in 1882, there is no question of the Crown becoming

entitled to both ownership and possession of the land upon the lease

coming to an end. The rights granted here were inconsistent with

native title. The questions about leasehold interests that were

considered in Wik do not arise.106

As native title was wholly extinguished, Fejo held that Crown ownership

did not have to be investigated. In Ward, one issue before the court was the

effect of various statutory leases on native title, and the High Court held

that, even with respect to partial extinguishment of native title, Crown

ownership still did not have to be explained:

Yet there may be cases where the executive, pursuant to statutory

authority, takes full title or plenum dominium to land and it is clear

that this would extinguish native title. Likewise, it may be that the

assertion or exercise of some rights in relation to land which fall short

of the taking of full title to it, may have some relevant effect on native

title rights and interests.107 (emphasis added)

In this passage, it is the legislative taking of “full title” that extinguishes

native title, but actions that fall short of the taking of full title may have an

“effect” on native title. It is with this passage in Ward, that Australian

jurisprudence has ended any attempt to explain Crown title to land.108 Any

explanation of the extinguishment of native title rests on means other than

the Crown acquisition of ownership of land, and thus the Crown title to

land remains incomplete and imperfect.

104 Mabo at 54 per Brennan J. 105 Fejo at [48] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 106 Fejo at [55] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 107 Ward at [151] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 108 However in Ward Aboriginal ownership of land was also left open: see Chapter 4

footnote 18.


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In responding to the Wik peoples argument that the Crown should not be

taken, upon the granting of a limited estate in land to thereby manifest an

intention to appropriate to itself full title, Brennan CJ stated:

If the holders of native title were recognised as the owners of an

estate in remainder in the land …would the holders of native title

have become liable to pay for the improvements to the land effected

during the expired lease? ..These questions indicate some of the

problems that arise once the fundamental doctrines that govern the

title to land granted by the Crown under the 1910 Act are departed

from. In my opinion, the common law could not recognise native title

once the Crown alienated a freehold or leasehold estate under that

Act.109

If an Aboriginal community had granted a term lease to a pastoralist out of

its common law native title, then it would have the rights of the owners of

the title out of which the lease was granted, a proposition accepted in New

Zealand.110 However, Brennan J’s hypothetical question fails to separate the

relevant issues. If the Crown grants a leasehold interest over land that the

Crown does not own (does not have allodial title to), then there are three

separate issues: what is the relationship between the Crown and its grantee,

what is the relationship between the Crown and the true owner of the land,

and what is the relationship between the grantee and the true owner of the

land? As native title holders have not granted an "estate" in land, it is

meaningless to talk of them holding an "estate" in land. It is true that the

grant of a lease is an assertion of control over land, but a grant of a lease is

not evidence of ownership of the land by the grantor. As stated in Re

Southern Rhodesia: “the uncontested disposal of lands, as upon a grant for

value, may be indicative of ownership in the grantor or it may not”.111

(emphasis added) The Crown must prove its title.

What is required to determine the ownership question is “the identification

of the rights which vesting … under the relevant .. legislation gave to the

body or person in whom it was vested.” What is “vested” may be “no more

than is necessary for the public body to discharge its function.”112

As always, in a question such as the present, the relevant starting

point is the legislation; it is not what has been held about other

statutes, even by courts of high authority.113

109 Wik at 95 per Brennan CJ. 110 §2.2(a)(i) Maori title as property. 111 [1919] AC at 244. 112 Ward at [225]-[227] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 113 Ward at [228] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. This consistent with the

approach of the Wik majority in determining the meaning of rights conferred by grant of a

statutory “pastoral lease”. The majority analysed the conception of the pastoral lease in


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Thus, legislation which permitted Maori land to be “set apart reserved and

taken” be executive act vested title in the Crown and extinguished Maori

customary title, if the land was in fact “taken”.114 Executive acts which

simply “set apart and reserved” land that was later granted, did not vest

title or ownership in the Crown.115

The principle, that one must ascertain from the language and intention of

the legislation what is meant by any taking or vesting of title to land, also

applies to the vesting of title to other objects of property rights, such as

minerals.116 The vesting of “property” in the Crown may indicate a clear

and plain intention to extinguish all other proprietary interests, including

native title rights over that object, or the vesting may not indicate such

intention.117

Where the law does not recognise ownership rights, but only limited

property rights, as is the case with wild animals,118 flowing water, 119 or the

legislation and historical documentation, including Imperial despatches, to hold that, at 120

per Toohey J, that it “was unlikely that the intention of the legislature … was to confer

exclusive possession on the lessees to the exclusion of Aboriginal people.” Similarly 147 -154

per Gaudron J; 171-175 per Gummow J; 227–30, per Kirby J. 114 Faulkner v Taurunga District Council [1996] 1 NZLR 357 at 364 . 115 Manu Kapua v Para Haimona [1913] AC 761. The facts of the case are set out in the text

accompanying footnote 255. 116 The majority in Ward at [383] Gleeson CJ, Gaudron, Gummow and Hayne JJ held that

“Even if such a right [native title right to minerals] had been established then, as Beaumont

and von Doussa JJ held, those rights would have been extinguished by s 117 of the Mining

Act 1904 and s 9 of the Petroleum Act 1936”. This was because, as stated at [377]: “by s 117

of the Mining Act 1904 (WA), and s 9 of the Petroleum Act 1936 (WA) the Crown

appropriated to itself an interest in the minerals described in the Mining Act 1904 , and in

petroleum, “which amounts to full beneficial ownership, and that accordingly any native

title that may have existed in relation to minerals or petroleum has been extinguished”.

Beaumont and von Doussa JJ reached the same conclusion with respect to the Minerals

(Acquisition) Ordinance (NT). 117 R v Bernard 2003 NBCA 55 at [185] “the Crown's argument ..[is] that by vesting licensees

and lessees with ownership of timber growing on Crown lands, the legislature intended to

extinguish aboriginal title and any treaty right to harvest and sell timber … I see the

legislation as expanding the rights of lessees and licensees as against wrongdoers and not as

an implicit attempt to extinguish a treaty or aboriginal right.” 118 Yanner at [28] per Gleeson CJ, Gaudron, Kirby and Hayne JJ (wild animals): “the

statutory vesting of ‘property’ in the Crown by the successive Queensland fauna Acts can be

seen to be nothing more than ‘a fiction expressive in legal shorthand of the importance to its

people that a State have power to preserve and regulate the exploitation of an important

resource.’” 119 In Hayes v Northern Territory [1999] FCA 1248 at [120] the Federal Court held the Water

Act 1992 (NT) s.9 which provided: “Subject to this Act, the property in and the rights to the

use, flow and control of all water in the Territory is vested in the Territory” extinguished

native title water rights to the extent they could not be brought within statutory reservations

in the Act. Water rights are generally statutory rights: Williams v Morley (1824) 2 B & C 910:

“Flowing water is originally publici juris. So soon as it is appropriated by an individual, his

right is coextensive with the beneficial use to which he appropriates it…Running water is


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seabed,120 the vesting of “property” in the Crown has, in Australian and

comparative jurisprudence, been interpreted as not necessarily amounting

to the vesting of a right which extinguishes native title in the absence of a

clear and plain intention to this effect.

(e) The Crown as the source of title in the absence of allodial title

It has been earlier argued that the doctrine of the Crown as the source of

title was the premise for the doctrine that native title was inalienable other

than to the Crown.121 The doctrine that native title was alienable only to the

Crown enabled the Crown to perfect its title to land. It followed that until

Aboriginal “ownership” 122 of land was transferred to the Crown, the only

possible purchaser of the land, the Crown did not own the land. Once the

Crown owned the land, it could then grant interests in the land out if its

present proprietary right. In Australia, the Crown has not exercised a

sovereign power to purchase native title, or to vest allodial title in itself. As

the Crown has no allodial title, it follows that the Crown cannot grant an

estate in fee simple, or common law lease, out of its allodial title. If the

Crown did not extinguish the property right of native title by purchase, one

must turn to the other legal principles relevant to the extinguishment of

property rights.

not in its nature private property. At least it is private property no longer than it remains on

the soil of the person claiming it.” 120 Ngati Apa at [113] per Gault P (seabed): “It was submitted for the Crown that s.7

Territorial Sea Contiguous Zone and Exclusive Economic Zone Act 1977 … extinguished

that status [Maori title]. I am not persuaded that is so. Those provisions deem the seabed “to

be and always to have been vested in the Crown” but subject to the grant of any estate or

interest therein whether made before or after the commencement of each of the Acts.” 121 §4.4(e)(iv) The limitation on alienation: the Crown as the source of title. 122 Ngati Apa at [37] per Elias CJ: “From the beginning of Crown colony government, it was

accepted that the entire country was owned by Maori according to their customs and that

until sold land continued to belong to them”.


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§6.2 Because native title is a property right, a clear and plain legislative

intention to extinguish is required

The Crown did not acquire allodial title to land on sovereignty, and has not

exercised its sovereign power to acquire allodial title, or vest allodial title in

itself. Prior to the creation of statutory proprietary interests, native title was

the only proprietary interest in land under Australian law. Native title

cannot be extinguished by the mere operation of the common law.123 This

section examines the principles governing the executive or legislative

extinguishment of property rights and native title rights.

Whether the enactment of legislation is intended to extinguish property

rights, or create an executive or legislative process by which proprietary

rights may be taken or extinguished, depends on the proper intention of

the legislation. Courts approach the interpretation of legislation with

various assumptions in mind. These assumptions are not factual

“predictions, capable of being verified or falsified” but are rather

expressions of “legal value, respected by the courts, and acknowledged by

the courts to be respected by Parliament”.124 As part of these legal values,

there is a presumption that Parliament is not to be taken to have intended

that legislation abrogate existing rights, unless it does so clearly.125 The

rationale for the presumption is found in the legal value that it is “in the

last degree improbable that the legislature would overthrow fundamental

principles, infringe rights, or depart from the general system of law,

without expressing its intention with irresistible clearness”.126

123 Re Ninety-Mile Beach [1963] NZLR 461, 477-78 per TA Gresson J: “the contention.. that

customary native title over the had been extinguished by operation of the common law ..

would in effect amount to depriving the Maoris of their customary rights over the foreshore

by a side wind rather than by express enactment”. 124 Al-Kateb v Godwin (2004) 219 CLR 562 at [20] per Gleeson CJ. 125 Parliament is not to be taken to have intended to abrogate existing rights unless it does so

clearly: see Bropho v Western Australia (1990) 171 CLR 1 at 18. R v Mercure (1988) 48 DLR

(4th) 1 at 55, La Forest J for the majority: “I begin with the well-established principle that

statutes are not to be read as interfering with vested rights unless the intention is declared

expressly or by necessary implication”. Similarly 1 Blackstone Commentaries at 127-29, 138-

45; 8 Halsbury's Laws of England (4 ed, London: Butterworths, 1974) at [828], [833]. 126 Potter v Minahan (1908) 7 CLR 277 at 304, adopted in Al-Kateb v Godwin (2004) 219 CLR

562 at [19] per Gleeson CJ. In Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121

CLR 177 the High Court held there that the Mining Act 1906 (NSW) should be construed so

as to not interfere with a landowner’s right to carry on mining operations on his own land.

Barwick CJ (at 181) applied “the fundamental principle that if Parliament intends to

derogate from the common law right of the citizen it should make its law in that respect

plain ... The courts are not entitled, and ought not, to eke out a derogation of such private

rights by implications not rendered necessary by the words used by Parliament but merely

considered to be consistent with the policy which the courts conclude or suppose the

Parliament intended to implement”.


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(a) Extinguishment of property rights requires a clear and plain

intention

The property right is a fundamental common law right.127 The general

presumption that Parliament is not to be taken to have intended that

legislation abrogates rights, applies to property rights.128 Executive power

to affect property rights only exists pursuant to a statutory conferral of

power.129 A delegation from the legislature to the executive authorizing the

taking of property must be clearly expressed.130

Compulsory acquisition legislation enables the acquisition of proprietary

interests in land. The extinguishment of property is at the heart of the

legislative purpose, and compulsory acquisition legislation creates an

executive or legislative process, the clear and plain intention of which is to

extinguish some or all property rights including native title.131 The use of a

word such as “take” in relation to land does not necessarily refer to the

acquisition of ownership or “full title”.132 What the legislation means by

using the word “take” is a matter of legislative intention. An intention to

extinguish all property rights is manifested to the extent that such

legislation permits the vesting of a property right, usually an estate in fee

simple, in the Crown or other statutory body, “free and discharged from all

trusts, obligations, estates, interests, contracts, licences, charges, rates and

easements”,133 or by the adoption of a similar expression.

The requirement for a clear and plain intention also applies to the

protection of property rights which derive from common law custom.

Forbes v Ecclesiastical Commissioners134 involved the grant of property by the

Ecclesiastical Commissioners under legislation which proved for the grant

127 The usually cited statement is that of Lord Camden in Entick v Carrington (1765) 19 St Tr

1029 at 1030: “The great end for which men entered into society was to secure their

property. That right is preserved sacred and incommunicable in all instances where it has

not been abridged by some public law for the good of the whole.... By the laws of England,

every invasion of private property constitutes a trespass. No man can set his foot upon my

ground without my licence, but he is liable to an action, though the damage be nothing.” 128 Pearce and Geddes op cit at [5.17]-[5.19]. 129 The Proclamations Case (1610) 12 Co R 74 (KB). 130 Simpson v South Staffordshire Water Works Co (1865) 34 LJ (NS) Ch 380 at 387. 131 See discussion in Ward at [432]; similarly Bodney v Westralia Airports Corporation Pty

Ltd [2000] FCA 1609 where acquisitions or rights effected under the Lands Acquisition Act

1906 (Cwth) were held to extinguish native title. If there was any doubt, the Wik

Amendments provided that the compulsory acquisition of land extinguishes native title:

s.24MD(2)(c) Native Title Act. 132 Osoyoos Indian Band v Oliver (Town) [2001] 3 SCR 746 at [86]: “To elaborate further, the

word “take” in relation to land does not necessarily refer to the acquisition of full title.

Rather, The Dictionary of Canadian Law (2nd ed 1995) defines “take lands” as including to

“enter upon, take possession of, use and take lands for a limited time or otherwise or for a

limited estate or interest”. Similarly Belfast Corp v OD Cars Ltd [1960] AC 490 at 523. 133 Section 16(1) of the Lands Acquisition Act 1906 (Cwth). 134 Forbes v Ecclesiastical Commissioners (1872) LR 15 Eq 51.


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to be “free and absolutely discharged from all rights of common”.135 The

court held that the power to discharge the land of such rights did not

include the extinguishment of the customary right to use the green “for

enjoyment and exercise, amusement and recreation”:

To hold otherwise would be to destroy by a side-wind public rights

which were not in the contemplation of the Legislature.136

The taking of property rights is not something that can occur as an

unspecified consequence of the doing of an otherwise lawful act. 137 The

taking of a property right may be the taking of one’s ability to live:

Expropriation constitutes a drastic interference with an individual's

right to property. It allows a government to deprive a person of his or

her land. In some cases this may mean that an individual loses a home,

a “safest refuge”. In other cases, such as the case at bar, expropriation

may lead to the loss of one's livelihood. 138

(b) Extinguishment of native title requires a clear and plain intention

Australian and comparative jurisprudence apply a principle that a clear

and plain intention is required to extinguish native title on three bases: on

the basis that native title is a legal right,139 on the basis that native title is a

property right,140 or simply on the basis that it is native title:

It is unnecessary for our purposes to consider the several juristic

foundations - proclamation, policy, treaty or occupation - on which

native title has been rested in Canada and the United States but

reference to the leading cases in each jurisdiction reveals that,

whatever the juristic foundation assigned by those courts might be,

135 Gifts for Churches Act 1811 (UK), 51 Geo 3 c.115 s.2.

136 Forbes v Ecclesiastical Commissioners (1872) LR 15 Eq 51 at 55. 137 Barrington's Case (1611) 8 Co Rep 138a, quoting in Boswell's Case (1584): with respect to a

Private Act: “when an Act makes any conveyance good against the King, or any other

person or persons in certain, it shall not take away the right of any other, although there be

not any saving in the Act.” 138 Leiriao v Val-Bélair (Town) [1991] 3 SCR 349 at 356-57 per Lamer CJ, La Forest and

L'Heureux-Dubé JJ (diss). Coke on Littleton at 162: “For a man's house is his castle, and each

man's home is his safest refuge”. 139 Mabo at 110 per Deane and Gaudron JJ, Gumana v Northern Territory [2005] FCA 50 at

[69]: “Parliament is not to be taken to have intended to abrogate existing rights unless it

does so clearly”. Similarly Sparrow at 1099; Gladstone at [31]. 140 Mabo at per Toohey J at 195; Calder at 404 per Hall J; Lipan Apache Tribe v United States

(1967) 180 Ct Cl 487 at 492: “In the absence of a “clear and plain indication” in the public

records that the sovereign “intended to extinguish all of the (claimants') rights” in their

property, Indian title continues”.


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native title is not extinguished unless there be a clear and plain

intention to do so.141

The New Zealand Court of Appeal has labelled this the “protective

approach adopted in the earlier American and Privy Council authorities

[which] is to be seen in more recent rulings of the Supreme Court of

Canada, the High Court of Australia and this Court”.142 In Mabo143 and the

Native Title Act Case the High Court adopted the principle against

extinguishment as the applicable presumption:

To discharge the onus, it is necessary to show at least that the Crown

has manifested clearly and plainly an intention to extinguish all

native title. So much is required of any statute which is said to

extinguish native title which has survived acquisition of a territory by

the Crown.144

This principle was also accepted by the Wik majority.145 A “law of general

application” cannot meet the standard of “clear and plain intention”

needed to extinguish native title,146 although “express” extinguishment of

native title is not required. 147

The drafting of legislation which extinguishes native title is a

straightforward matter. The Queensland Coast Islands Declaratory Act 1985

(Qld) and the Land (Titles and Traditional Usage) Act 1993 (WA) are Acts that

clearly extinguish native title.148 Similarly the Wik Amendments provided

that “previous exclusive possession acts” extinguished native title.149 The

Foreshore and Seabed Act 2004 (NZ), on the assumption that they might exist,

clearly and plainly extinguished Maori customary rights in the foreshore

and seabed and replaced them with limited rights provided under the

Act.150 However, as noted earlier, prior to the filing of the claim in Mabo,

141 Mabo at 64 per Brennan J, similarly Wik at 85 per Brennan CJ (diss) ; R v Bernard 2003

NBCA 55 at [177] 142 Ngati Apa at [148] per Keith and Anderson JJ. 143 Mabo at 64 per Brennan J it “must reveal a clear and plain intention to do so, whether that

action be taken by the Legislature or the Executive.”; similarly at 111 “clear and

unambiguous” per Deane and Gaudron JJ; at per Toohey J at 195. 144 Native Title Act Case at 423 per Mason CJ, Brennan, Deane, Gaudron, Toohey, McHugh

JJ. 145 Wik at 123-34 per Toohey, 166 per Gaudron J, 169 per Gummow J, 249 per Kirby J. 146 Delgamuukw at [180] per Lamer CJ: “First, a law of general application cannot, by

definition, meet the standard … as one of “clear and plain” intent. 147 Gladstone at [34]: It does not require “language which refers expressly to its

extinguishment of aboriginal rights”, adopted in Delgamuukw at [180] per Lamer CJ;

similarly Osoyoos Band v Town of Oliver [2001] 3 SCR 746 at [57]. 148 See legislation and discussion in §3.3(b) Denial of native title as a denial of the right to

enjoy property contrary to the guarantee of equality before the law in the RDA . 149 See §1.2 An overview of the Australian law of native title 150 Section 10 provided: ‘customary rights claim’ means any claim in respect of the public

foreshore and seabed that is based on, or relies on, customary rights, customary title,


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native title rights were not generally in contemplation of the legislature,

and so any inquiry into a pre-Mabo legislative intention to extinguish native

title “is somewhat artificial when it is recalled that …the Aborigines and

their title to land were ignored”151 by legislation.

In Mabo it was stated that general legislation permitting the management of

Crown lands was not be taken as extinguishing native title.152 Such

legislation was not intended to render native title holders trespassers or

persons in “unlawful occupation of any Crown land”.153 This approach was

confirmed in Ward: “neither the reservation of the land nor placing it under

the control of the Shire extinguished any native title right to hunt and

gather”.154 Something more is required: something that provides an

intention to extinguish native title, rather than merely affect or regulate

native title rights. 155

aboriginal rights, aboriginal title, the fiduciary duty of the Crown, or any rights, titles, or

duties of a similar nature, whether arising before, on, or after the commencement of this

section. 151 Native Title Act Case at 431-33 per Mason CJ, Brennan, Deane, Gaudron, Toohey,

McHugh JJ. 152 Mabo at 111 per Deane and Gaudron JJ; at 196 per Toohey J set out footnote 101. 153 Wik at 194 per Gummow J. 154 Ward at [267] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 155 Mabo at 64 per Brennan J: “A clear and plain intention to extinguish native title is not

revealed by a law which merely regulates the enjoyment of native title or which creates a

regime of control that is consistent with the continued enjoyment of native title”. Yarmirr

FFC at [360] per Beaumont and Von Doussa JJ: “Any native title proved to exist may be

extinguished by operation of law. Thus, a legislative or executive act that expresses or

exhibits a clear and plain intention to extinguish native title, or a native title right or interest,

will extinguish it. However, such an intention is not revealed by a law which merely

regulates the enjoyment of native title or which creates a regime of control that is consistent

with the continued enjoyment of native title.”


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§6.3 Extinguishment of native title in the absence of acquisition of

allodial title or a clear and plain extinguishment: the Crown grant

of rights to land

In addition to surrender or sale of native title to the Crown, and the

enactment of legislation which clearly and plainly extinguishes native title,

or provides an executive or legislative process clearly and plainly intended

to extinguish native title, Australian jurisprudence alone has set out two

additional bases on which native title can be extinguished:

• by use of land in a way that is inconsistent with the recognition of any

continuing native title right (a proposition since abandoned); and

• by Crown grant under general Crown lands management legislation of

a right inconsistent with a native title right.

Australian jurisprudence has held that general Crown lands management

legislation did not extinguish native title.156 It has not held that such

legislation created an executive and legislative process manifesting an

intention to extinguish native title. However in Fejo the High Court took the

view that the power to grant an estate in fee simple under Crown lands

legislation authorised the grant of a right to land which extinguished native

title, by reason of an inconsistency of rights test. Extinguishment of native

title on the basis of an inconsistency of rights has been rejected in Canadian

jurisprudence. The extinguishment of native title is determined by the

legislative intention.157 The Fejo decision involved the abandonment of the

requirement for a clear and plain intention to extinguish native title. In

Ward the High Court applied the inconsistency of rights test set out in Wik

to confirm the partial extinguishment of native title by grant of leases

conferring rights defined by statute, bringing about extinguishment to the

extent of the inconsistency of rights.158

This section examines how the two unique Australian propositions about

extinguishment of native title are explained. Ultimately both propositions

derive from a prior classification of the property right of native title as an

156 §6.1(d)(vi) Acquisition of allodial title by legislation. 157 Delgamuukw at [180] per Lamer CJ: “the standard ..[of] the extinguishment of aboriginal

rights … was laid down in Sparrow at 1099, as one of "clear and plain" intent. In that

decision, the Court drew a distinction between laws which extinguished aboriginal rights,

and those which merely regulated them. Although the latter types of laws may have been

"necessarily inconsistent" with the continued exercise of aboriginal rights, they could not

extinguish those rights. … My concern is that the only laws with the sufficiently clear and

plain intention to extinguish aboriginal rights would be laws in relation to Indians and

Indian lands.” Delgamuukw BCCA, see footnote 274. In Delgamuukw BCSC at 411

McEachern CJ held extinguishment arose out of colonial enactments which demonstrated an

intention to manage Crown lands in a way that was inconsistent with continuing aboriginal

rights. This intention to extinguish did not only apply to lands that had actually been

granted to third parties, but rather all Crown land in British Columbia. 158 §1.2 An overview of the Australian doctrine of native title.


Page 178

inferior “right” or “property”, when compared to proprietary interests in

land under Crown grant. Such propositions avoid the issue of whether

native title holders or the Crown are, in any sense, owners of the land over

which interests have been granted, and avoid engaging the argument that

rights under Crown grant are rights against the whole world only if they

are carved out of an allodial title or a perfected title, carved out of the

Crown’s proprietary interest in land against the whole world.

(a) Crown use of land does not extinguish native title

In Mabo, Brennan J held that where the Crown has “appropriated” land to

itself and used the land in a manner which precludes the continuing

concurrent enjoyment of native title, native title is extinguished to the

extent of the inconsistency.159 This approach was endorsed in the Native

Title Act Case,160 and summarised in Wik by Brennan CJ:

the Crown, without statutory authority, may have acquired beneficial

ownership simply by appropriating land in which no interest has

been alienated by the Crown ... the appropriation of the land gives

rise to the Crown's beneficial ownership only when the land is

actually used for some purpose inconsistent with the continued

enjoyment of native title.161

The idea that any person can appropriate land owned by another by mere

use, as opposed to adversely possessing the land for a period leading to a

presumed transfer of an estate in fee simple to that person at the end of the

period, is unprecedented in Australian law, English law or comparative

jurisprudence. In essence, Brennan J’s position is that because the Crown

asserts by mere use, without statutory authority, rights akin to ownership,

this gives the Crown ownership and thereby extinguishes native title. The

language of the Native Title Act Case is subtly different: because the Crown

asserts rights akin to ownership, this extinguishes native title. The

discussion of whether, by mere use, ownership is actually vested in the

Crown is avoided:

159 Mabo at 69-70 per Brennan J: “Where the Crown has validly and effectively appropriated

land to itself and the appropriation is wholly or partially inconsistent with a continuing

right to enjoy native title, native title is extinguished to the extent of the inconsistency.” It is

made clear in the remainder of the paragraph that extinguishment takes affect when the

land is used for the purpose for which it was appropriated. 160 Native Title Case at 453 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh

JJ: see text accompanying footnote 162. 161 Wik at 85-86 per Brennan CJ. However, somewhat inconsistently, all members of the Wik

majority held extinguishment is determined by the legal effect of a grant, rather than

whether the rights conferred under the grant are exercised: Toohey J at 126, Gaudron J at

135, Gummow J at 135, Kirby J at 185. Brennan CJ (diss) at 87: to “postulate a test of the

inconsistency not between the rights but between the manner of their exercise would be to

deny the law's capacity to determine the priority of rights over or in respect of the same

parcel of land”.


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their enjoyment of the title is precarious under the common law: it is

defeasible by legislation or by the exercise of the Crown's (or a

statutory authority's) power ... to appropriate the land and use it

inconsistently with enjoyment of the native title.162

The High Court drew this distinction for the reasons that became apparent

in Wik. Unlike Brennan CJ, the Wik majority denied that radical title could

expand to allodial title, and declined to hold that mere use was the exercise

of a sovereign power which gave the Crown beneficial ownership of land.

The mere use doctrine is not a proposition about the taking of possession, a

process which gives the dispossessed a remedy. It is a proposition about

the extinguishment of a property right. While the doctrine of adverse

possession is based on the transfer of rights from the true owner, the mere

use doctrine can only derive from a premise that native tile holders did not

own the land, or have property rights in the land or have personal rights

against the Crown. Yet Brennan J expressly affirmed each of these

propositions in Mabo. If mere use can extinguish the property right of

native title, without a remedy for its loss, this raises the question of

whether native title is considered a legal right.163

On Brennan CJ’s view as expressed in Mabo and Wik, Crown use of land

took ownership from the native title holders and gave it to the Crown. The

decision of the Wik majority was that acquisition of ownership required the

exercise of sovereign power, and this lead to the view expressed in Ward:

actual use or non-use of the land is not relevant to “the ultimate question”

of whether native title has been extinguished.

The reference … to use of the land that is reserved, may distract

attention from the relevant inquiries. They are, as we have said,

whether rights have been created in others that are rights inconsistent

with native title rights and interests, and whether the Crown has

asserted rights over the land that are inconsistent with native title

rights and interests. …the basic inquiry is about inconsistency of

rights, not inconsistency of use”. (emphasis in original)164

162 Native Title Case at 453. 163 Ubi jus, ubi remedium – “where there is a right there is a remedy”. See §4.3(b) The

fragmentation of the Aboriginal connection to land: the common law as a jurisprudence of

rights. 164 Ward at [214]-[215] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “It is important to

recall that the ultimate question is whether, by the steps that were taken, the Crown created

in others, or asserted, rights in relation to the land that were inconsistent with native title

rights and interests over the land…The reference by Brennan J, in the passage of his reasons

in Mabo that is set out earlier, to use of the land that is reserved, may distract attention from

the relevant inquiries. They are, as we have said, whether rights have been created in others

that are rights inconsistent with native title rights and interests, and whether the Crown has

asserted rights over the land that are inconsistent with native title rights and interests. Use


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By avoiding the language of ownership, Ward avoids the issue of whether

the Crown, as mere user, is trespasser on land held under native title or has

infringed a native title right. However, Mabo had already indicated that

native title was a legal right protected legal remedies. The issue was put to

one side by Ward as a distraction to the relevant inquiry and irrelevant to

the ultimate question of extinguishment of native title.

In the absence of statutory rights, the Crown has no present proprietary

interest in the land. In the absence of a legislative conferral of executive

power, the Crown’s prerogatives do not empower it to deprive subjects of

their property rights over land without payment of compensation.165 The

doctrine of extinguishment by mere use can only be supported on

pragmatic considerations outside legal principle: because the Crown has

actually used land, as if it were the true owner of the land, it became the

true owner. What this approach indicates is an assumption about the shape

the law of native title must have, if priority is to be given to existing and

historical Crown use of land. Because this approach was unsustainable in

legal principle, subsequent jurisprudence has abandoned it.

(b) The Crown cannot by grant derogate from rights or privileges

In Mabo, Brennan J stated that the reason why a grant of an estate in fee

simple, or common law lease, extinguished native title was that native title

was not protected by the “presumption” against derogation:

Therefore an interest validly granted by the Crown, or a right or

interest dependent on an interest validly granted by the Crown

cannot be extinguished by the Crown without statutory authority. As

the Crown is not competent to derogate from a grant once made

[Stead v Carey166], a statute which confers a power on the Crown will

be presumed (so far as consistent with the purpose for which the

power is conferred) to stop short of authorizing any impairment of an

interest in land granted by the Crown or dependent on a Crown

grant. But, as native title is not granted by the Crown, there is no

comparable presumption affecting the conferring of any executive

power on the Crown the exercise of which is apt to extinguish native

title.167

of the land may suggest, it may even demonstrate, that such rights have been created or

asserted, but the basic inquiry is about inconsistency of rights, not inconsistency of use”.

(emphasis in original) 165 §6.4 Compensation for the extinguishment of native title. 166 Stead v Carey (1845) 1 CB 496 at 523. 167 Mabo at 64 per Brennan J.


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In the Native Title Act Case this approach was affirmed.168 However, the

common law protects property rights not derived from Crown grant,

against extinguishment by an otherwise valid Crown grant, not by

"presumptions", but by the substantive common law principles discussed

below.

It is necessary to note the distinction between grants out of allodial title (the

carving of a present right out of a pre-existing right) and the grant of a right

or privilege (the first creation of a right). As to the relevance of any

presumption against derogation with respect to the grant of interests from

allodial title, it has already been argued that once an estate in fee simple

has been granted, the Crown no longer holds meaningful proprietary

interests over that land only seigneury rights,169 and it follows that a

“presumption” against the Crown granting further interests in that land in

derogation of the earlier interest is unnecessary because a subsequent grant

to this effect is legally impossible. As to the relevance of any presumption

against derogation with respect to the grant of a statutory right or privilege

that did not exist before the grant – the situation in Stead v Carey – different

issues arise. It can be accepted that all powers of creation of interests in

land in Australia are derived from legislation,170 and “a legal or equitable

interest in land … cannot be extinguished without statutory authority.171 A

first creation of right, which in the Australian context includes the grant of

either an estate in fee simple or a pastoral lease under Crown lands

legislation, may be an act that purports to invade or destroy existing or

vested rights. A valid first creation of right axiomatically creates a vested

right, and this right itself may be protected against invasion or destruction

by common law principle.

(i) Stead v Carey: the principle against the invasion of rights by Crown grant

Stead v Carey concerned an invention patent granted to the plaintiff, but

void for non-registration within the period allowed, later validated by

legislation, but after a similar patent (which included the plaintiff's

invention) had been granted and validly registered by the defendant. The

court held that the validation of the earlier grant voided the later grant,

168 Native Title Act Case at 439 per Mason CJ, Brennan, Deane, Toohey, Gaudron and

McHugh JJ. 169 §6.1(a)

(v) After grant of an estate in fee simple the Crown retains no proprietary interests in

land 170 Mabo at 63: “In Queensland, the Crown’s power to grant an interest in land is … an

exclusively statutory power”; similarly the other Australian Colonies: Wik at 91 per Brennan

CJ; at 189 per Gummow J. 171 Native Title Act Case at 438-439 per Mason CJ, Brennan, Deane, Toohey, Gaudron and

McHugh JJ: “So far as it consists in ownership of or a legal or equitable interest in land, it

cannot be extinguished without statutory authority” citing Mabo at 64 per Brennan J.


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because this was the intended effect of the validating legislation. Erle J

stated:

The legislature has pointed out the mode in which void patents may

be rendered valid; and no exception is made in favour of parties who

have taken out patents in the intermediate time. If the defendant's

patent included the plaintiff's invention, it would be void.172

However, in coming to the same conclusion, Creswell J stated:

The Queen, by granting one man a patent, does not grant him the

privilege of invading the rights of another man … It was not

competent to the Queen, by her grant to the defendant, to derogate

from the grant she had already made to the plaintiff: and the effect of

the act of parliament is, to restore him to all the rights he had under

the patent as originally granted to him. 173

The principle against derogation was expressed as part of a wider

principle: any grant, first or subsequent, is not taken as invading the rights

of another. In Mabo a presumption relating to the affect of a Crown grant of

privilege on the capacity of the Crown to make a subsequent grant of the

same privilege was elevated to a legal principle that explains why a first

Crown grant of right (not carved out of a pre-existing allodial title)

extinguishes existing native title rights. This new principle is not derived

from the common law principle against the invasion of rights by Crown

grant, but from pragmatic concerns relating the validation of Crown grants

which may have offended the principle against invasion of rights.

(ii) The honour of the Crown: the king not to be deceived in his grant

The Native Title Act Case sourced the presumption against derogation to a

uncontextualised passage in Chitty’s Prerogatives, a passage dealing with

franchises (the grant of a privilege), though this was not made clear:

King cannot take away, abridge, or alter any liberties or

privileges granted by him or his predecessors, without the

consent of the individuals holding them. 174

The High Court immediately followed this quotation with its own

statement:

172 Stead v Carey (1845) 1 CB 496 at 523 per Erle J. 173 Stead v Carey (1845) 1 CB 496 at 523 per Creswell J. 174 Chitty’s Prerogatives at 125, which in turn sources it to Kyd S, A Treatise on the Law of

Corporations (London: J Butterworth, 1793-94). Chitty’s Prerogatives at 132: “It is a principle

of law, that the king is bound by his own and his ancestors' grants; and cannot, therefore, by

his mere prerogative, take away vested rights, immunities or privileges.”


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In particular, a grant cannot be superseded by a subsequent

inconsistent grant made to another person (Earl of Rutland's Case175). 176

Unlike the passage in Chitty, the Earl of Rutland's Case, did concern the

grant of an interest in land, and therefore, in English law, a grant sourced

in the Crown's allodial title. The case involved a grant by the king of a life

estate over land presently subject to a life estate under prior grant by his

predecessor. The issue was whether the second grant was void. The court

under Coke CJ did not cite any derogation principle but held that a

different principle was at stake: the King cannot be deceived in his grant.

The predecessor had granted a life estate of herbage and pannage to

Markham, and the king, reciting the earlier grant in the subsequent grant,

granted a life estate of herbage and pannage to the Earl of Rutland

“without shewing when it shall begin”.177 The latter grant was good: “the

King was not deceived in his grant, for he has recited the estate of

Markham … so that the King well knew that he could not grant that in

possession, which another then held for his life.”178 While the case was

resolved by the clear and plain intention manifested in the latter grant,

which was held not to be inconsistent with the former grant, it rested on

the assumption that the king “well knew that” he had no power to grant a

second life estate before the first expired.

The basis of the decision was not that such power existed and, in the

absence of a clear and plain intention to the contrary, could result in the

extinguishment of the earlier estate. The Court emphasised the lack of

power to make the second grant by immediately going on to refer to Lord

Chandos Case, 179 and resting its decision on the “honour of the Crown”:180

And the case of The Lord Chandos … was resolved to be a stronger

case; for there the King mistook the law, thinking …the estate tail was

extinct, and that he thereupon was seised in fee, and therefore he

granted the manor in possession, … But in the case at Bar the King

mistook nothing, nor took upon him to grant that which he could not

grant, nor was deceived in any part of his grant: …but if it may be

taken to one intent good, and to another intent void, then for the

King's honour, and for the benefit of the subject, it shall be taken in

such manner as the King's grant may take effect, for it was not the

King's intent to make a void grant. … therefore the King's grant shall

175 Earl of Rutland's Case (1608) 8 Co Rep 55a at 55b, 56a. 176 Chitty’s Prerogatives at 125 cited Native Title Act Case at 438. 177 Earl of Rutland's Case at 55b. 178 Earl of Rutland's Case at 55b. 179 Lord Chandos Case 1 Co Rep 46a at 51a-52b. 180 Earl of Rutland’s Case (1608) 8 Co Rep 55a at 56b (footnotes omitted).


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not he taken in such sense, for then the grant will be void: but it shall

be taken in such sense as it may stand with law.181

A presumption against derogation by Crown grant covers three situations.

It is a presumption to interpret the effect a Crown grant, either when the

Crown has no power to make such a grant, 182 or to resolve ambiguities

when the grant could be interpreted as including interests that were

beyond the power of the Crown to grant. Both these situations involve

application of the nemo dat principle. Thirdly, the presumption reflects a

wider principle, that the honour of the Crown requires that the Crown not

make void grants. These principles also apply to legislation authorising

Crown grants. The presumption against later derogation is a presumption

to preserve the honour of the Crown with respect to a grant, “for it was not

the King's intent to make a void grant”. 183

Notwithstanding the fiction under English law, that at some time in the

past the Crown has mediately or immediately granted an estate in fee

simple to a predecessor in title of the current holder of an estate in fee

simple, it is also a principle of English law protecting the honour of the

Crown, and perhaps limited to situations of actual grant, that:

the king's excellency is so high in the law, that no freehold may be

given to the king, nor derived from him, but by matter of record. And

to this end a variety of offices are erected ..through which all the

king's grants must pass, … that the same may by narrowly inspected

by his officers, who will inform him if any thing contained therein is

improper, or unlawful to be granted.184 (emphasis added)

The purpose of the principle that the King is not deceived in his grant is to

protect the honour of the Crown. It is not, as Australian jurisprudence

suggests, a presumption limited to the protection of rights under Crown

grants, and conversely dictating the destruction of property rights not

derived from Crown grant. The doctrine created in Mabo and endorsed in

the Native Title Act Case – that the absence of a presumption against

extinguishment of property rights creates a presumption that Crown grants

are intended to destroy property rights arising outside Crown grant – does

181 Earl of Rutland’s Case (1608) 8 Co Rep 55a at 56a (footnotes omitted). 182 Such grants are clearly void: see footnote 45. 183 Similarly Case of Churchwardens of St Saviour Southwark (1613) 10 Co Rep 66b at 67b:

“But if two constructions may be made of the King's grant, then the rule is, when it may

receive two constructions, and by force of one construction the grant may according. to

the rule of law be adjudged good, and by another it shall by law be adjudged void: then

for the King's honour, and for the benefit of the subject, such construction shall be

made, that the King's charter shall take effect, for it was not the King’s intent to make a

void grant” (footnotes omitted). City of Vancouver v Vancouver Lumber Company [1911]

AC 711 (PC) at 721: “The rule is a rule of common law by which a grant by the King which is

wholly or in part inconsistent with a previous grant is held absolutely void unless the

previous grant is recited in it.” 184 2 Blackstone Commentaries 346.


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not protect the honour of the Crown. The newly created doctrine invades

existing rights, and destroys vested rights.

(iii) The Crown cannot by grant destroy vested rights

The principle against the invasion of rights, the principle that the king is

not deceived his grant and the presumption against derogation, in the case

of ambiguity or a partially void grant, are not confined to protecting rights

created by Crown grant, because they reflect a wider principle: non potest

rex gratiam facere cum injuria et damno aliorum (The king cannot confer a

favour on one subject, which occasions injury and loss to others):

It is an ancient and constant rule of law, that the king's grants are

invalid when they destroy or derogate from rights, privileges, or

immunities previously vested in another subject.185

Thus “vested” rights, 186 not just those derived from prior Crown grant, are

protected under the principle.187 A presumption of non-interference with

vested rights applies to the interpretation of legislation generally. 188

The first step in the reasoning to justify extinguishment of native title by

Crown grant was therefore to re-interpret these wider principles as

protecting only interests derived from a prior Crown grant, and this was

done in Fejo, which held that every non-native title property right to land is

presumed to derive from Crown grant:

Next, it was sought to draw some analogy with rights recognised in

English land law like rights of common or customary rights. But

reference to those rights in the present context is misplaced. They are

creatures of the common law finding their origins in grant or

185 3 Coke Institutes 237 (citing Bracton) and 4 Blackstone Commentaries 397 cite this

principle. Broom H, A Selection of Legal Maxims, (3ed, London, Sweet and Maxwell 1852) at

80: “Non potest rex gratiam facere cum injuria et damno aliorum (The king cannot confer a

favour on one subject, which occasions injury and loss to others). It is an ancient and

constant rule of law, that the king's grants are invalid when they destroy or derogate from

rights, privileges, or immunities previously vested in another subject: the Crown, for

example, cannot enable a subject to erect a market or fair so near that of another person as to

affect his interest therein” [a reference to In the matter of the Islington Market Bill (1835) 3 Cl

& F 513 at 515 where it was held that, with respect to a right of market acquired by

prescription, any grant of a new market “within the common law distance of an old market,

primâ facie is injurious to the old market, and therefore void”]; Earl of Rutland’s Case

[discussed footnotes 175 to 181]; Alcock v Cooke [discussed footnote 45]; Grant of port

where vested rights are not interfered with. See Mayor of Exeter [a reference to Mayor of

Exeter v Warren (1844) 5 QB 773 at 799-800 where it was held that the Crown could create a

port by grant, “so long as there was no interference with the rights previously vested”].” 186 Vested rights are distinguished from “contingent or inchoate” rights: Planning

Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [6]. 187 Islington Market Bill, Mayor of Exeter see footnote 185. 188 See cases cited footnote 125.


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presumed grant [Attorney General v Wright; Megarry and Wade]. And

the rights that are now in issue - native title rights - are not creatures

of the common law.189

Both the very case190 and the textbook passage191 cited in Fejo to support the

proposition of acquisition of customary rights by presumed grant deny any

such general principle. Customary rights are based on a fiction of

immemorial usage, not a fiction of Crown grant.192 The general proposition

in Fejo is incorrect. To the extent that proprietary interests in land are

treated as rights under fictional grants by English law, the proposition is

irrelevant in Australian law. In Australian jurisprudence, in the absence of

the getting of allodial title, interests in land must be explained by means

other then the fiction of presumed Crown grant out of allodial title, or out

of an interest ultimately sourced in allodial title. In Australian

jurisprudence, interests in land are either grants of rights defined by

legislation, or rights derived from a such grants, or are to be explained by

some other doctrine of law, such as native title.

The first step in reasoning to justify extinguishment of native title by

inconsistent Crown grant was to re-interpret the principle that Crown

grants do not invade or destroy vested rights, as a mere presumption

against derogation of interests derived from Crown grant, and deem all

189 Fejo at [53] the footnote refers to “Attorney General v Wright [1897] 2 QB 318. See also

Megarry and Wade, The Law of Real Property, 5th ed (1984) at 854”. 190 Attorney General v Wright [1897] 2 QB 318 held that an immemorial user of the foreshore

by the owners of fishing-boats, of fixing moorings in the soil, may be supported either as an

ordinary incident of the navigation, or on a presumption of a legal origin by grant from the

Crown, or by concession by a former owner of the foreshore to all persons navigating the

waters. Lord Esher MR at 321 stated: “I think such a matter is not to be traced to a grant by

the sovereign or the owner of the soil, but that it is a right by the law of England, a public

right in every one navigating in navigable waters. If so, the owner of the soil [the holder of a

several fishery] took his rights to the soil subject to those general rights”. Only AL Smith LJ

at 324 positively canvassed a presumed grant: “The answer is that the claim to the soil is

subject to the ordinary incidents of navigation .. But if this inference which I draw is

incorrect … In the present case this duty [of finding a legal origin] is satisfied either by

presuming a grant from the Crown …or a grant from the lord of the manor.” 191 Megarry and Wade, 5th ed (1984) at 854, now Megarry and Wade op cit at 1126-27: The

presumption of lost grant “was entirely a judge-made fiction” originally created to deal with

user “after 1189”, that is use that could not be brought within common law custom, and

though now “twenty years’ use will normally raise such presumptions”, and a right “in the

nature of an estoppel by conduct”. They cite Attorney General v Wright as authority for a

proposition of a presumption of a “lost port authority regulation” which was Rigby LJ’s

unique contribution to the decision 192 Hammerton v Honey (1876) 24 WR 603 at 604: Custom was “invented by judges for the

purpose of giving a legal foundation or origin to long usage…. you find long-continued

usage which can have a legal origin, then, with the view of preserving to the people

claiming them the quiet possession of the rights of property or rights of easement which

they have so long enjoyed, you shall attribute these rights, if possible, to a legal origin so as

to support them.” Similarly New Windsor Corp v Mellor [1975] Ch 380 at 386-387. See

generally §4.3(c)(ii) The doctrine of acceptable custom: traditional law as a source of law

that is subordinate to the common law.


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non-native title common law property rights with respect to land as rights

derived, in fact or fiction, from Crown grant. This approach differentiates

native title from all other property rights. The second step in the reasoning

was to see the different property right of native title as a lesser right, a

fragile right when compared to rights under Crown grant.

(c) Native title as a fragile right

High Court cases since Mabo have abandoned the language of native title as

ownership and used a rhetoric of native title as a defeasible and lesser

“right”, but provided little reasoning to support this. Australian law treats

native title as an “fragile” or inferior species of property right. The fact that

native title can be extinguished by the grant of estate in fee simple

“suggests a reluctance by the Court to recognise an equation between the

exclusive use of the land by traditional ... societies and by the settler

society. It suggests, again, a concern with unstated pragmatic

considerations.”193

It is only if one begins from the perspective that the property right held

under Crown grant is superior to property right of native title that one can

justify the displacement of native title rights by Crown grant, in the absence

of any clear and plain legislative intention that the grant of rights was

intended to affect native title in any way. A context which sees native title

as a compromised common law right,194 once established, accommodates

such a perspective. In Mabo, the majority held that native title was not

protected by the “presumption” against derogation, and thus began a

process by which rights under Crown grant could be classified as superior

to native title. In Wik, Fejo and Ward rights under Crown grant were seen as

prevailing against the rights of native title holders (persons who did not

derive their rights by Crown grant) and, to the extent that rights under

Crown grant were inconsistent with rights under native title, the superior

former rights extinguished the latter fragile rights.

Prior to Australian native title jurisprudence, there was no conception of

“fragile” rights under Australian law. The conception of native title as

dependent upon the good will of the Sovereign had long since disappeared

in the comparative jurisprudence, and was rejected in Mabo. Traditional

rights, once recognized as native title, are rights under Australian law.

There is only one legal system in Australia, and therefore only one

conception of legal right. Native title is not the recognition of a reasonable

custom, nor of rights under a system of mixed law or legal pluralism.

Native title is a bundle of in rem property rights protected by remedies, but

193 Bartlett Equality before the Law at 391. 194 §4.5 The denial of full respect: a conclusion.


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if native title is only a “foster child”195 of the common law, does this mean

that native title is not a true common law right? 196

The conception of native title as “fragile” is located in the discussion of

native title and the estate in fee simple, the former is fragile, the latter is

not,197 and was developed in Fejo by Kirby J as a “comparison between the

inherently fragile native title right, susceptible to extinguishment or

defeasance, and the legal rights which fee simple confers”.198

[T]he rights which may be enjoyed compatibly with an interest in fee

simple themselves derive from the same legal source. They are not

rights, inherently fragile and liable to defeasance, arising outside that

system and dependent for their effectiveness upon the extent to

which a different legal system accords them its recognition.199

In Kirby J’s analysis, fragility as an aspect of traditional rights carries over to

native title as a common law right, a proposition inconsistent with native

title as a common law right.

Putting non-proprietary native title rights to one side, 200 if native title

cannot be appropriately seen as a fragile “right”, can it be appropriately

seen as a fragile “property” right? A property right is not a single

conception:

The amount of “property” which a specified person may claim in any

resource is capable of calibration – along some sort of sliding scale –

from a maximum value to a minimum value…Far from being a

monolithic notion of standard content and invariable intensity,

195 Yorta at [180] per Callinan J. 196 The approach of Kirby J and Callinan J: §4.3(c)(v) A conclusion on the rules of right-

recognition. 197 Yanner v Eaton B52/1998 (transcript 5 May 1999): “Gummow J: What do you understand

is involved in this term “fragility” which is used in this universal discourse? Fee simples are

not fragile, we all know that.”. 198 Fejo per Kirby J at [105]. In Wik he rejected the idea of native title as fragile: “The first

theory … postulates the extreme fragility and vulnerability of native title. Under this theory,

any action… expels native title. This is so, whatever the estate or interest granted. It does not

depend upon the precise legal features of that estate or interest … The first theory is not

compatible with … Mabo“. 199 Fejo per Kirby J at [108]. 200 Yarmirr at [12] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: With respect to “native

title rights and interests …[n]either the use of the word “title” nor the fact that the rights and

interests include some rights and interests in relation to land should… be seen as necessarily

requiring identification of the rights and interests … traditionally recognised as items of

“real property”. Still less do those facts necessarily require …features … necessary or

sufficient to constitute “property”.


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“property” thus turns out to have an almost infinitely gradable

quality. 201

The Crown grant of rights to land is, in accordance with the honour of the

Crown, made on the basis that the Crown has proprietary interests to grant.

The king is not deceived in his grant. A Crown grant is to be seen as fully

respecting existing rights, whether or not they are derived from prior

Crown grant.202 Why does this principle not apply in Australian

jurisprudence to fully respect native title property rights? If rights under

Crown grant are to be accorded priority over all other proprietary interests,

then it follows that all other proprietary interest are lesser. But the

proposition set out in Australian jurisprudence, by bare assertion, is that it

is only native title rights that are defeasible to rights under Crown grant. To

imprint the term “fragile” on native title, as a consequence of the

translation of traditional rights into property rights under Australian law,

is to accord native title a lesser weight than other property rights. While

sufficient importance has been attached to the recognition of pre-existing

rights to translate them into property rights, native title is a “lesser”

property right, even though extinguishment of native title is the destruction

of a proprietary interest. However, even this reasoning does not take native

title out of the conception of “property” under Australian law. Native title

as lesser property is not a conclusion that flows from a description of native

title as a property right with a sui generis content.203

The power to extinguish native title by the Crown grant of rights was

described as the source of native title’s “vulnerability” in Mabo by Deane

and Gaudron JJ,204 as the reason it was a “precarious” right in the Native

Title Act Case by Mason CJ, Brennan, Deane, Toohey, Gaudron and

McHugh JJ 205 and the source of its “weakness” in Fejo by Gleeson CJ,

Gaudron, McHugh, Gummow, Hayne and Callinan JJ 206 In Ward the joint

majority discussed the “inherent fragility” of native title:

201 Gray K and Gray SF, “The Idea of Property in Land”, in Bright S and Dewar J (eds), Land

Law: Themes and Perspectives (Oxford: OUP, 1998) 15 at 16. 202 §6.3(b) The Crown cannot by grant derogate from rights or privileges. 203 §4.4(d) Native title as a property right with sui generis content 204 Mabo at 112 per Deane and Gaudron JJ: “the vulnerability of the rights under native title

resulted in part from the fact that they were personal rights susceptible to extinguishment

by inconsistent grant by the Crown”. 205 Native Title Case at 452-53 per Mason CJ, Brennan, Deane, Toohey, Gaudron and

McHugh JJ: “their enjoyment of the title is precarious under the common law: it is defeasible

by legislation or by the exercise of the Crown's (or a statutory authority's) power to grant

inconsistent interests in the land or to appropriate the land and use it inconsistently with

enjoyment of the native title.” 206 Wik at 84 per Brennan CJ (diss) quoted in Fejo at [44] per Gleeson CJ, Gaudron, McHugh

Gummow Hayne and Callinan JJ: “Its weakness is that it is not an estate held from the

Crown nor is it protected by the common law as Crown tenures are protected against

impairment by subsequent Crown grant”.


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Reference was made in Mabo [No 2] to the inherent fragility of native

title.207 One of the principal purposes of the NTA was to provide that

native title is not able to be extinguished contrary to the Act. An

important reason to conclude that, before the NTA, native title was

inherently fragile is to be found in this core concept of a right to be

asked permission and to speak for country. The assertion of

sovereignty marked the imposition of a new source of authority over

the land. Upon that authority being exercised, by the creation or

assertion of rights to control access to land, the right to be asked for

permission to use or have access to the land was inevitably confined,

if not excluded.208

According to Mabo, the imposition of a new source of authority was on the

basis that pre-existing rights to land were to be fully respected as common

law rights, and, as common law rights, burdened the sovereign title of the

Crown to the land. To describe native title right as fragile simply because it

is subject to the exercise of sovereign authority fails to distinguish the

fragility of native title from the fragility of other property rights. The

proposition from Mabo to Fejo and Ward is that because it can be

extinguished by Crown grant native title is therefore fragile, rather than a

proposition that native title is appropriately classed as a "fragile" common

law right, and as a consequence of this appropriate categorisation, native

title is extinguishable by Crown grant.

While the content of native title rights are sui generis, when compared with

the rights under an estate in fee simple, it is not clear in what sense this is

meaningful in explaining the affect that a grant of an estate in fee simple

should have on native title rights. Both the estate in fee simple and

communal native title confer a right of exclusive possession of land. Native

title is sourced outside the common law, but native title is a common law

right. The native title right to control access to land is held at the communal

level, but the holding of the right at a communal level is not relevant to its

calibration as a property right of maximum value, as a right of full blooded

ownership. The right to control is no less absolute and no more qualified

for being held communally. A general right of alienation is a traditional

common law incident of ownership, and this incident is absent from native

title. If limited alienation derives from the principle of the Crown as source

of title, then limited alienation reflects only the incapacity of settlers to

purchase Native title is fully alienable to the Crown and the Crown has the

capacity to acquire native title by “surrender or purchase”.209 The limitation

on alienation does not deny native title a proprietary status, but it does

make native title a form of title that is different to fee simple ownership. It

207 Contrary to this statement, the concept of fragility does not appear in Mabo. 208 Ward at [91] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 209 §4.4(e)(v) The doctrine of inalienability as explained in Mabo.


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is not a limitation on native title holders ability to enjoy exclusionary rights

of control.

If one begins with the proposition that native title is the only form of

proprietary interest that can be extinguished by legislation which does not

manifest a clear and plain intention to do so, then native title is fragile in

this sense. Australian jurisprudence began by affirming the requirement for

a clear and plain intention to extinguish native title.210 However, the

principle was ignored in Fejo,211 and Ward simply affirmed the

inconsistency of rights test as the sole requirement for determining the

extinguishment of native title:

The cases often refer to the need for those who contend that native

title has been extinguished to demonstrate a “clear and plain

intention” to do so [footnote: For example, Native Title Act Case at 423

per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ].

That expression, however, must not be misunderstood. The subjective

thought processes of those whose act is alleged to have extinguished

native title are irrelevant. Nor is it relevant to consider whether, at the

time of the act alleged to extinguish native title, the existence of, or

the fact of exercise of, native title rights and interests were present to

the minds of those whose act is alleged to have extinguished native

title. It follows that referring to an “expression of intention” is apt to

mislead in these respects. As Wik and Fejo reveal, where, pursuant to

statute, be it Commonwealth, State or Territory, there has been a

grant of rights to third parties, the question is whether the rights are

inconsistent with the alleged native title rights and interests. That is

an objective inquiry which requires identification of and comparison

between the two sets of rights. 212 (footnotes omitted) (emphasis in

original)

The reasoning set out above does not address the issue of whether the

language and intention of legislation evinces an intention that the grant of

interests to third parties is to extinguish native title, the relevant question

that remains part of the law in comparative jurisprudence.213 Instead, the

joint majority state that the subjective intent of the executive officer

granting the statutory rights is irrelevant, a proposition that common law

210 §6.2 (b) Extinguishment of native title requires a clear and plain intention 211 In Fejo at [106] only Kirby J accepted the need for a clear and plain intention to be found

and stated that this was to be found in the grant of an interest that equated to “every act of

ownership” in respect of land over which the native title existed. This approach also begins

from the notion that where rights under Crown grant and native title rights are inconsistent,

rights under Crown grant prevail. 212 Ward at [78] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 213 §2.3(b) Extinguishment of native title.


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jurisprudence has never put forward.214 What the clear and plain intention

principle requires is an expression of statutory intention, as made clear in

the passage of the Native Title Act Case referred to: “the Crown has

manifested clearly and plainly an intention to extinguish all native title. So

much is required of any statute which is said to extinguish native title”.215

The requirement for a legislative intention is circumvented in Ward by

asserting that it is not “the question”, “the question is whether the rights

are inconsistent with the alleged native title rights”. The extinguishment of

native title is the common law outcome of the inconsistency of rights,216 not

the result of a clear and plain legislative intention.

A conclusion that native title is a fragile right can only follow from an

assumption to that effect. It cannot be deduced from a comparison between

the content of the rights to control and use land under native title and the

rights under an estate in fee simple (common law right compared to

common law right), nor from a comparison between the connection to land

under traditional laws and customs and ownership under Australian law

(traditional rights compared to common law rights).217

(d) Australian jurisprudence: the extinguishment of native title by

grant of an estate in fee simple

Ultimately, the proposition in Australian jurisprudence that the grant of an

estate in fee simple extinguishes native title rests on the superiority of

common law property rights over fragile native title rights. The argument

that, in the absence of a clear and plain legislative intention, the grant of an

estate in fee simple under general Crown lands legislation per se

extinguishes native title has not been adopted in the comparative

214 Mabo at 64 per Brennan J is clearly talking about a legislative intention: “A clear and

plain intention to extinguish native title is not revealed by a law which merely regulates the

enjoyment of native title or which creates a regime of control that is consistent with the

continued enjoyment of native title”. Yarmirr at [261] per Kirby J: “The purpose of a

legislature must be ascertained objectively from the language of the legislation that it

enacts”. 215 The passage is set out in full in the text accompanying footnote 144. 216 Ward at [82] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “It is essential to identify

and compare the two sets of rights: one deriving from traditional law and custom, the other

deriving from the exercise of the new sovereign authority that came with settlement. It is

true that the NTA (in par (b)(ii) of s 23G(1)) and the State Validation Act (in par (b)(ii) of

s 12M(1)) speak of the “suspension” of inconsistent native title rights and interests in certain

circumstances. However, this statutory outcome is postulated upon an inconsistent grant of

rights and interests which, apart from the NTA and the State Validation Act, would not

extinguish the native title rights and interests.” 217 Lardil at [148] an exchange between the trial judge and a native title claimant which

emphasised a oneness with country: “Q: When one thinks about the idea of connection to

the natural resources … is it appropriate to use the term “ownership”? A: Only as far as

owner. This is my arm, I own it. It’s connected to me. Q: Part of you? A:Yes. …Q: But it’s not

the same as you own the shirt on your back or your watch or something like that? A:That’s

whitefellas law.”


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jurisprudence. But Fejo asserts that the comparative jurisprudence is

consistent with such a conclusion. This section examines this statement.

The grant of an estate in fee simple estate occurs as a result of the Crown

exercising an executive power pursuant to legislative authority, or

exceptionally as a result of the direct exercise of legislative power.218 By

describing the statutory interest granted as an estate in fee simple,

legislation is defining the incidents of the interest by reference to the

incidents of the common law interest bearing the same name, as legislation

has been clear in removing rights that would otherwise be included in the

grant.219 But such grants are grants of rights which owe their existence and

meaning to the empowering legislation. They are not grants of common

law rights. As the Crown in Australia has no pre-existing allodial title out

of which to carve estates in land, the first grant of rights under Crown

lands legislation is the creation of rights that did not previously exist.

Crown lands legislation “ignored” native title, and is therefore to be

interpreted as creating interests in land “without affecting accrued rights

and existing status any more than was necessary”.220 Something more than

“the mere exercise by the Crown of rights of dominium in respect of the

land”221 is required to indicate an intention to extinguish native title. The

question is therefore whether the Crown, as the source of a grant, is

asserting only that it has a legal relationship with grantee, as defined by the

terms of the grant, or is also asserting that the grant defines the Crown’s

legal relationship with native title holders, even though the Crown is not

the source of their title to land - a question put and answered in Baker Lake:

It seems to me that the grant of title to the [Hudson’s Bay] Company

was intended solely to define its ownership of the land in relation to

the Crown, not to extinguish the aboriginal title.222

The cases discussed earlier223 made the following points:

218 For example, Moore-Street Improvement Act 1890 (NSW) s.9; Parramatta Friendly

Societies' Hall Site Vesting Act 1904 (NSW) s.2. 219 For example s.18 of the Crown Lands Alienation Act of 1861 (NSW) reserves to the

Crown “all minerals which the said land contains.” 220 Native Title Act Case at 433 per Mason CJ, Brennan, Deane, Gaudron, Toohey, McHugh

JJ; Spooner Oils Ltd v Turner Valley Gas Conservation Board [1933] SCR 629 at 638: “A

legislative enactment is not to be read as prejudicially affecting accrued rights”; Martin C

(ed), Oxford Dictionary of Law (4 ed, Oxford: OUP, 1997): “Vested rights are rights that

have accrued to a person as opposed to rights that are yet to be acquired”. The usage of

“accrued right” emphasises the immediate enforceability of the right. 221 Wik at 235 per Kirby J: “Something more is needed to remove that burden, and to

extinguish the native title, than a mere exercise by the Crown of rights of dominium in

respect of the land.” 222 Baker Lake at 233. 223 §6.1(b) Crown must have interests in land before it can grant interests in land.


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• The “grant of land to a subject” is premised on the assumption that

the grantor has something to grant, as “this original title provides the

foundation and source of all other titles.” 224

• Persons who derive their rights to land by Crown grant cannot

challenge the validity of the Crown grant to them, because as against

them, the Crown is the source of title. 225

• The grant of an estate in fee simple without prior surrender of native

title is voidable against native title holders.226

• The circumstances of the innocent Crown grantee (or the grantee’s

successor in title) may be such that the appropriate remedy for native

title holders affected by such grant is damages against the Crown,

rather than the return of the land or ejectment.227

The above line of reasoning results in a jurisprudence where, as against

native title holders, the grant of an estate in fee simple has no effect on

native title rights, but may result in native title holders having a remedy

against the Crown limited to damages. However, from the moment native

title was judicially conceived in Australia, it was envisaged that native title

would be extinguished by the grant of an estate in fee simple, a common

law lease of exclusive possession, and, indeed, by the mere governmental

use of land.228 The only significant difference of opinion among the six

majority judges in Mabo was whether a pre-RDA right of compensation

would arise by reason of the extinguishment of native title.

In Fejo the High Court justified its decision, that the grant of an estate in fee

simple extinguished native title, as consistent with comparative

jurisprudence:

It is clear that it is recognised in other common law countries that

there can be grants of interests in land that are inconsistent with the

continued existence of native title[fn1]; the question in each case is

whether the later grant has had that effect [fn2]. In some cases the

answer that has been given in other jurisdictions may have been

affected by the existence of treaty or other like obligations. Those

considerations do not arise here. In this case, the answer depends

only upon the effect of a grant of unqualified freehold title to the

224 Wik at 172 per Gummow J. 225 Symonds at 391 see footnote 57. 226 Chippewas of Sarnia at [261]: “A “void” patent is said to be one that has no legal effect

whatsoever, while a “voidable” patent is one that does have effect unless and until it is set

aside.” 227 Chippewas of Sarnia at [311]. 228 Mabo at 217: The final order Mabo reads: “putting to one side the Islands of Dauer and

Waier and the parcel of land leased to the Trustees of the Australian Board of Missions and

those parcels of land (if any) which have validly been appropriated for use for

administrative purposes the use of which is inconsistent with the continued enjoyment of

the rights and privileges of the Meriam people under native title, declare that the Meriam

people are entitled …”


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land.

[fn1] See, for example, in the United States, Missouri, Kansas & Texas

Railway Co v Roberts 152 US 114 at 117-118 (1894); in Canada,

Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR

(3d) 513 at 549; in New Zealand, Te Teira Te Paea v Te Roera Tareha

[1902] AC 56 at 65; Manu Kapua v Para Haimona [1913] AC 761 at

766-767; Faulkner v Tauranga District Council [1996] 1 NZLR 357 at

365-366; in Nigeria, Sakariyawo Oshodi v Moriamo Dakolo [1930] AC

667 at 670.

[fn2] See, for example, Buttz v Northern Pacific Railroad 119 US 55

(1886); R v Sparrow [1990] 1 SCR 1075; Delgamuukw v British

Columbia (1993) 104 DLR (4th) 470.229

It is said that the extinguishment of native title in the comparative

jurisprudence is the effect of “grants of interests” being “inconsistent with

the continued existence of native title”. The reason grants may have this

effect in the comparative jurisprudence is because there is a specific

legislative intention to this effect. The reference to the comparative

jurisprudence is summed up with the proposition: “In this case, the answer

depends only upon the effect of a grant of unqualified freehold title to the

land.” This is a different proposition. It is implied that the comparative

jurisprudence has determined that, treaty-like considerations aside, if rights

under Crown grant and rights under native title are inconsistent, native

title rights are extinguished. However, in the comparative jurisprudence

the factual inconsistency of rights does not determine the issue of whether

the extinguishment of native title was the intended effect of a grant. The

question in Australian and comparative jurisprudence remains: what is the

intended effect of the grant of an interest in land on native title? None of

the cases cited in Fejo support a proposition that the intended effect of the

various “grants of interests in land” under general legislation, including

grants of freehold title, was to extinguish native title.

The US and New Zealand cases did not involve the grant of an estate in fee

simple under general legislation, but under specific legislation. The US

cases involved direct statutory grants to railroad companies. In United

States, Missouri, Kansas & Texas Railway Co v Roberts the Supreme Court

applied the principle that where a grant of right does not specifically

abrogate Indian title, it is subject to Indian title. The New Zealand cases

involved the operation of the Native Lands Acts enacted for the purpose of

legislatively extinguishing Maori title, and replacing inalienable Maori title

with the Crown grant of an alienable estate in fee simple called Maori

freehold title. Sakariyawo Oshodi concerned the meaning of a grant of an

estate in fee simple in a jurisdiction where traditional laws and customs

229 Fejo at [54].


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were recognized as a source of law, and held that Crown grants were to be

interpreted as recognizing traditional rights, rather than extinguishing

them. The Canadian case of Baker Lake was the only case cited which has

truly raised the issue of the legal co-existence of an estate in fee simple

granted under general legislation and native title, though it did not purport

to provide an answer.

(e) Comparative jurisprudence: no extinguishment of native title by

grant of an estate in fee simple

(i) US jurisprudence

It is useful to continue the examination of Fejo by reference to US

jurisprudence, as that jurisprudence is unequivocally inconsistent with Fejo,

and the US is the only jurisdiction where treaty issues seem relevant, as the

Fejo passage seems to refer to the distinction in Tee Hit Ton between

unrecognized Indian title, and Indian title recognized by treaty. The two

cases cited in Fejo preceded the creation of the distinction between

recognized and unrecognized title in Tee Hit Ton. The cases rest on the

conception of Indian title as set out in Johnson v McIntosh and Tillamooks.

However, Tee Hit Ton endorsed the proposition that Indian title could only

be extinguished by sovereign act, and a clear and plain intention was

required to extinguish Indian title, but held that such extinguishment did

not give rise to a claim for compensation. To the extent that Tee Hit Ton

established the latter proposition, subsequent US jurisprudence has

abandoned it.230

The doing of executive or legislative acts do not affect or extinguish Indian

title in the absence of a clear and plain legislative intention to do so.231 US

jurisprudence allows the federal creation of contingent interests in land

over which Indian title exists and such interests (the naked fee) do not

affect Indian title, let alone extinguish it.232 Without the prior acquisition of

Indian title, government cannot dispose of land subject to unrecognized

Indian title under general public lands legislation.233 To interpret general

230 §2.2(c)(iii) Compensation for extinguishment of Indian title. 231 Thus, Sante Fe 314 US at 347 (Indian title not extinguished by a statutory railroad grant),

348-49 (by land grants to individuals), 351 (by a surveyor’s report), 353 (by establishing an

Indian reservation), 354-56 (by moving Indians off the land to the reservation). 232 §2.1(b)(iii) USA: extinguishment of Indian title. 233 In Lane v Pueblo of Santa Rosa 249 US 110, 113 (1919) the Court prevented the Secretary

of the Interior disposing of lands, subject to an Indian title not recognized by treaty, under

laws relating to the public lands, on the basis that to do so would be “an act of confiscation”.

Similarly in Cramer v US 261 US 219 (1923) it was held that Indian title was not

extinguished by a federal land patent under general legislation. The government had issued

patents to the Central Pacific Railway Company on the assumption that there was no

reservation or encumbrance to prevent the passage of full title to the grantee. The Pueblo

asserted an unrecognized Indian title, one claimed by right of occupancy only. As the right

of occupancy was not referred to in the grant, it was not terminated by the grant.


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legislation as authorising the extinguishment of Indian title by grant would

be contrary to the history of US - Indian land dealings, and contrary to the

intent of the legislation.

In US law, titles specifically validated or authorised by legislation are

equated to the direct grant of title by legislation.234 Such legislation might

show a clear and plain intention to extinguish native title. However, this

proposition is distinct from an argument that the executive grant of an

estate in fee simple under general legislation extinguishes Indian title, an

argument that has never been accepted by the Supreme Court, even in post

Tee Hit Ton jurisprudence with respect to unrecognized Indian title.235 The

effect of a grant under specific legislation is a matter of the intention the

empowering legislation, within constitutional constraints.236

Many Congressional grants of title, rights of way or easements in aid of

railway construction were made under specific legislation in the 1800s, and

the argument that they were intended to extinguish Indian title was made

234 Marsh v Brooks 55 US 513, 519 (1852) : “A confirmation of a title by act of Congress, not

only renders it a legal title, but furnishes higher evidence of that fact than a patent,

inasmuch as it is a direct grant of the fee”, citing Strother v Lucas 37 US 410, 437 (1838).

Michigan Land & Lumber Co v Rust 168 US 589, 593 (1897): “It is true a patent is not always

necessary for the transfer of the legal title. Sometimes an act of congress will pass the fee.” 235 In United States v Atlantic Richfield Co 435 F Supp 1009 (D Alaska 1977) affd 612 F 2d

1132 (9th Cir 1980), the US District Court, in a footnote referring to “a Congressionally

authorised conveyance” (1020 fn 45), expressly adopted the Tee Hit Ton distinction between

unrecognized Indian title: unrecognized Indian title “as opposed to Indian title recognized

by treaty on reservation, is legally extinguishable when the United States makes an

otherwise lawful conveyance of land pursuant to federal statute. Congressionally authorised

conveyance of lands from the public domain demonstrates the requisite intent to extinguish

the Indian right of exclusive use and occupancy to those lands.” ANCSA §4(a) (§1603(a))

provided that the “prior conveyance of public land … shall be regarded as an

extinguishment of Aboriginal title thereto, if any … and all Aboriginal titles, if any … are

hereby extinguished”. Atlantic Richfield involved a claim that ANCSA did not abrogate

claims with respect to trespass that arose prior to its passage. The Court held that the

legislative history and terms of ANCSA, which validated past conveyances and provided

that they extinguished Indian title, indicated it was intended to “conclusively and finally

settle” (1031) all Indian claims, “to extinguish aboriginal title and all claims based on

aboriginal title” (1031). The case has been cited in a number of journal articles, none of

which cite it for a proposition that “conveyance of lands from the public domain”

extinguishes Indian title. For example: (1986) 17 Pacific LJ at 421: ANCSA “retroactively

validated selections of land made by the State of Alaska prior to enactment, and was

specifically intended to extinguish aboriginal title [footnote Atlantic Richfield]”; 1988 U

Toronto LJ at 229: “an express provision in a statute will extinguish Aboriginal title [footnote

Atlantic Richfield]”; (1993) 18 American Indian Law Review 458: “However, land claims

settlement acts, general or express with regard to extinguishing Indian claims, have been

given great weight [footnote Atlantic Richfield]”. 236 Atlantic Richfield formed part of a trilogy of Federal Court cases: Edwardsen v Morton

369 F Supp 1359, 1379 (1973) held that trespass claims accruing before ANCSA was enacted

were “vested property rights protected by the Fifth Amendment”. Atlantic Richfield (1977)

came to the conclusion that ANCSA extinguished all claims based on aboriginal title,

including trespass claims. Inupiat Community v United States 680 F 2d 122 (1982) held that

ANCSA extinguishment of trespass claims did not violate the Fifth Amendment.


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and rejected in the two cases cited in Fejo. The cases do not depart from the

propositions about Indian title set out in Chapter 2 - Comparative

jurisprudence: native title as a property right. The grants in these cases were

held not extinguish recognized Indian title at a time when there was no

distinction in US jurisprudence between recognized and unrecognized title.

Buttz v Northern Pacific Railroad 119 US 55 (1886)

Buttz was the first of the railroad grant cases to reach the Supreme Court.

Congress legislatively granted specified public land to the railroads, but

such statutory grants generally acknowledged Indian title, whether or not

such title had been recognized by treaty or Act of Congress. However, even

when the grants did not acknowledge Indian title, the grants did not

extinguish Indian title. 237 The statutory grant in Buttz provided:

The United States shall extinguish, as rapidly as may be consistent

with public policy and the welfare of the said Indians, the Indian

titles to all lands falling under the operation of this act, and acquired

in the donation to the [railroad] named in this bill. 238

The Supreme Court in Buttz held that the title conveyed to the railroad in

1864, and perfected by Indian surrender of the land in 1873, prevailed over

a settler’s “pre-emption rights” to the land under a Homestead Act,239 as

“[a]t the time the act of July 2, 1864, was passed the title of the Indian tribes

was not extinguished” and so “The [statutory] grant conveyed the fee

subject to this right of occupancy. The railroad company took the property

with this incumbrance”.240 The decision in Buttz was later described by the

Supreme Court as follows:

In Buttz … the grant operated to convey the fee to the company,

subject to the right of occupancy by the Indians, but that the right of

the Indians could not be interfered with or determined, except by the

United States.241

237 See footnote 233 with respect to unrecognized title. Where legislation did not expressly

extinguish Indian title, Atlantic etc R Co v Mingus 165 US 413, 436-37 (1897) set out the

principle: “Indians have proceeded to establish and carry on independent governments of

their own … Under these circumstances, it could scarcely by expected that the United States

should be called upon to extinguish, for the benefit of a railroad company, which had

chosen to locate its route through this territory, a title guarantied to the Indians by solemn

treaties.” 238 Act of July 2, 1864, 13 Stat 365, s.2. 239 Buttz v Northern Pacific Railroad 119 US 55, 58: The settler Peronto claimed under the

“act of September, 1841, granting pre-emption rights, and the acts amendatory thereof,

[including] 'An act to secure homesteads to actual settlers on the public domain” to specified

land. 240 Buttz v Northern Pacific Railroad 119 US 55, 66. 241 The summary of the case in Atlantic etc R Co v Mingus 165 US 413, 437 (1897).


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United States, Missouri, Kansas & Texas Railway Co v Roberts 152 US 114

(1894) at 117-118

In United States, Missouri, Kansas & Texas Railway Co a railroad company

claimed certain lands conveyed by Congressional grant in aid of railway

construction. The lands were also claimed by the Walapais as part of their

ancestral land. The Supreme Court held that the company was not entitled

to any land which had been historically occupied by the Walapais and had

not been voluntarily surrendered.

An Act of Congress, not general legislation, authorised the company to

appropriate and use as a right of way land needed for the railway on the

Osage reservation. Thus the “title to the land for the 200 feet in width thus

granted vested in the company, either upon the passage of the Act of

Congress, July 26, 1866, or upon the construction of the road”.242 However,

this title did not extinguish Indian title.

Though the lands of the Indians were reserved by treaty for their

occupation, the fee was always under the control of the government;

and when transferred, without reference to the possession of the

lands, and without designation of any use of them requiring the

delivery of their possession, the transfer was subject to their right of

occupancy; and the manner, time, and conditions on which that right

should be extinguished were matters for the determination of the

government.243 (emphasis added)

(ii) New Zealand jurisprudence

New Zealand jurisprudence (apart from the Wi Parata years) has

recognized Maori title as ownership and therefore held:

The land became subject to the disposing power of the Crown by

Crown grant only once customary ownership had been lawfully

extinguished. 244

While Maori title was recognized in the Treaty of Waitangi, native title as a

common law right did not depend upon such recognition. New Zealand

jurisprudence holds unequivocally that Maori title cannot be extinguished

by the grant of an estate in fee simple, or other interest, under general

legislation. The Native Lands Act set up a process, the very purpose of

which was, as clearly indicated in the various preambles to such Acts, to

extinguish Maori customary title and replace it with statutory Maori

242 152 US at 117. 243 152 US at 117-118. 244 Ngati Apa at [38] per Elias CJ.


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freehold title.245 After a determination of customary title by the Native Land

Court, statutory grants of an estate in fee simple were made to the Maori

owners. The process did not involve the grant of an estate in fee simple to a

third party under general legislation.

In 1863 many Maori were in rebellion and all the cases cited in Fejo concern

land that was confiscated pursuant to legislative authority. The New

Zealand Settlements Act 1863 (NZ) provided for the confiscation by the

Crown of lands of Maori whom the Crown assessed to have been in

“rebellion”, and empowered the Governor by s 2 to declare districts, and

by s 5 to “reserve or take any land within such district and such land shall

be deemed to be Crown land, freed and discharged from all title, interest or

claim of any person whomsoever.” The Native Lands Act provided the

process for the subsequent grant of title to “loyal Maori”.

Te Teira Te Paea v Te Roera Tareha [1902] AC 56, 65

In Te Teira Te Paea v Te Roera Tareha, the plaintiffs claimed that they had

been loyal to the Crown when land, including the Kaiwaka block, was

“reserved and taken”246 by an 1867 Order in Council under the 1863 Act.

Pursuant to an agreement between the Crown and Maori, “certificates of

title”247 over all confiscated blocks were granted to named Maori parties, all

blocks having between 13 and 40 named grantees, except for the Kaiwaka

block, which only had one name: Te Roera Tareha. The only evidence as to

what the agreement intended with respect to the Kaiwaka block was a

letter, referred to in the agreement, which the Privy Council held supported

the view that “this block was allotted to him [Te Roera Tareha] beneficially

rather than .. as a trustee for others.” 248 The Te Teira Te Paea claimed the

block was held on trust for them, as they were owners under Maori custom.

Both the confiscation and agreement were regarded as defective and were

validated by the Mohaka and Waikare District Act 1870 (NZ), which provided

under s 5, that Crown grants were to be issued in favour of named persons

“in fee simple”.249 The Privy Council concluded that:

The judgement of Supreme Court was based on two grounds…that

all lands...were forfeited to the Crown by reason of the

245 Preamble set out in Chapter 2 footnote 81. Ngati Apa [40] per Elias CJ: “The Native Lands

and Maori Lands Acts from 1862 until enactment of Te Ture Whenua Maori Act 1993 were a

mechanism for converting Maori customary proprietary interests in land into fee simple

title, held of the Crown. Only such land could be alienated by the Maori owners to private

purchasers. The explicit policy of the legislation was “to encourage the extinction of such

proprietary customs and to provide for the conversion of such modes of ownership into

titles derived from the Crown” (Preamble to the Native Lands Act 1865).” 246 Te Teira Te Paea, 61 247 Te Teira Te Paea, 65 248 Te Teira Te Paea, 64 249 Te Teira Te Paea, 65


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rebellion…and could be...granted out by it, as it pleased...[and] that

the title…to...the lands…must be decided by the terms of the

agreement…Their Lordships concur…250

The case determined that native title ceased when the land was forfeited to

the Crown. Having come to that conclusion, the block was granted to Te

Roera Tareha absolutely, as this was what was intended by the agreement

and validating Act. The Privy Council stated at 65:

The terms of the agreement itself shew that the persons to whom

lands were granted were to derive their title from the Crown; the Act

says the grants were to be to them in fee simple - an expression quite

inapplicable to lands held by native custom.

This passage is simply a statement that the language of a grant of an estate

in fee simple is not an appropriate expression to describe the grant of land

to be held on trust in accordance with Maori custom. As Maori title was

extinguished prior to the grant of the fee simple, the passage is not

authority for a proposition that the description of a right granted as an

estate in “fee simple” is a clear and plain intention, by such language, to

thereby extinguish native title.

Manu Kapua v Para Haimona [1913] AC 761, 766-767

Manu Kapua also involved a purported confiscation and grant of Maori

land. By an Order in Council under the 1863 Act, it was declared that lands

including the Te Akau block should be “set apart and reserved as sites for

settlements for colonization”.251 The Native Land Court subsequently

determined there were 77 loyal and 44 rebel Maori (from two tribes/hapu,

Tainuis and Tahingas) “interested in the area” 252 under Maori customs, and

on the basis of this determination, a Crown grant of Maori freehold title

was issued under the 1863 Act to named loyal Maori in 1874. The block was

further partitioned in 1894 under the Native Land Court Act 1886 (NZ) in a

way that “took no account of any ancient tribal boundary between the two

tribes”. 253 Following subsequent enquiries, court decisions and a Royal

Commission in connection with the block, the Maori Land Claims Adjustment

and Laws Amendment Act 1904 (NZ) conferred direct authority on the Native

Appellate Court to determine the "dispute between the native owners as to

tribal or hapu boundaries … and to confirm or if necessary amend in

accordance with the equities of the case any order heretofore made.” The

findings of the Native Appellate Court that the Order in Council did not

extinguish the title of the loyal Maori and therefore the grant did not

250 Te Teira Te Paea, 71 251 Manu Kapua v Para Haimona [1913] AC 761 at 761. 252 Manu Kapua at 765. 253 Manu Kapua at 765


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extinguish their title, 254 and re-partitioning the block in accordance with

Maori custom, was appealed to the Privy Council, which distinguished Te

Teira Te Paea:

In the case relied on, the words of the Order were not “set apart and

reserved,” but “reserved and taken,” … Their Lordships are of

opinion that the Order in Council of September 2, 1865, did not

extinguish the native or other title of any loyal inhabitant. …Prior to

the grant and the antecedent proceedings the land in question had

been held by the natives under their customs and usages….255

The … Native Appellate Court … consider[ed] that the land of the

loyal natives was never confiscated under the New Zealand

Settlement Acts or the Order in Council of 1865. With this opinion

their Lordships have already intimated their agreement….256

However at page 766-67 of the judgment the following passage occurs:

The 1894 judgement … proceeded on the assumption that the Crown

grant of 1874 had been made without reference to any previous

native title or tribal boundary. If the effect of the Order in Council of

September 2, 1865, had been to extinguish the title of the loyal natives

this might well have been so. But, as their Lordships have already

stated, they do not consider that the Order disturbed the rights in the

land of the loyal members of the two tribes. It follows that the grant

only did what such grants are often used to accomplish in such

transactions in New Zealand. It appears simply to have conveyed the

legal estate out of the Crown and transformed the native customary

title into a freehold title, the relative interests of the grantees

remaining equivalent in value and extent to what they were before.

The 1865 Order in Council did not extinguish Maori title. The 1874 Crown

grant had converted Maori title to Maori freehold title, but did so without

disturbing the relative rights of the Maori. The Native Appellate Court’s

order re-determining partition in accordance with “the ancient tribal

boundary between the two tribes” was valid. 257

254 The agreed facts before the Privy Council, Manu Kapua at 762, raised only the rights of

“any loyal inhabitant” and no discussion of the rights of rebel Maori occurs in the decision.

Prior to the Privy Council decision the Maori had sold the land to the Crown. 255 Manu Kapua at 764-65. 256 Manu Kapua at 768-69. 257 Manu Kapua at 770.


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Faulkner v Tauranga District Council [1996] 1 NZLR 357, 365-366

The Privy Council had earlier made clear in Nireaha Tamaki:

Unless there is legislative authority or provisions such as were found

in ss 85 and 86 of the Native Land Act 1909, the Executive cannot, for

example, extinguish customary title by granting the land to someone

other than the customary owners. If it does so the grantee’s interest is

taken subject to the customary title.258

Faulkner involved land held as an estate in fee simple as a result of the

Tauranga District Lands Act 1867 (NZ) (“An act to validate certain

Proceedings relating to lands in the Tauranga District”). The Act itself

provided that certain land was “duly and effectually set apart reserved and

taken under the [New Zealand Settlements Act 1863]”. The effect of the 1867

Act was, therefore, that any defects in prior confiscation in the Tauranga

District were validated. The relevant land was then granted as an estate in

fee simple under the Native Land Court Act 1886 (NZ) to Maori as Maori

freehold title. The issue before the Court was whether the land was truly

Maori freehold title and rateable or, in reality, Maori customary land held

on trust, and not subject to rates.

Blanchard J began by setting out the law on “extinguishment of customary

title”, repeating as part of his judgment the passage from Nireaha Tamaki

above.259 He concluded260 that Maori title was extinguished by the

legislatively validated confiscation, not by the subsequent grant of an estate

in fee simple after confiscation:

In this case I find that the Crown extinguished the Crown-recognized

customary title when it took the district by statute.261

The following passage occurs at 365:

… when land is held by way of an estate in fee simple, especially

where there is a registered title under the Land Transfer Act, the title

must be regarded as one derived from the Crown. It is impossible, I

think, to say that such title is merely Crown recognized and

continues, so far as the fee simple owners … are concerned, to be held

according to custom.

258 Nireaha Tamaki at 578. 259 [1996] 1 NZLR 357, 363. 260 [1996] 1 NZLR 357, 365-66. 261 Faulkner at 366: “In this case I find that the Crown extinguished the Crown-recognized

customary title when it took the district by statute…[but the Ohuki block] was later vested

back in Maori ownership when the Commissioner [of Tauranga Land] issued certificates

[“as to the ownership of the Ohuki block”].


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The judgment then refers to the passage in Te Teira Te Paea v Te Roera Tareha

at page 65 discussed earlier,262 and holds that the land is Maori freehold

title, land held under Crown grant, and is rateable.

The New Zealand cases simply affirm that legislation enacted to convert

Maori customary title to Maori freehold title has that effect, and the

description of Maori freehold title as an estate in fee simple held from the

Crown is an expression that is "inapplicable" to describe land held by Maori

custom.

(iii) Privy Council (west African) jurisprudence

Notwithstanding the Privy Council jurisprudence on appeals from New

Zealand, Privy Council cases from Lagos, and later Nigeria, have always

held that, under the introduced English law in that colony, grants of fee

simple convey a title to be held in trust in accordance with rights under

traditional law, rather than convey an estate in fee simple to the person

named.263 Sakariyawo Oshodi v Moriamo Dakolo264 merely confirmed this. In

Nigeria, traditional law is a direct source of law.265

The appeal in Sakariyawo Oshodi related to the respective rights of the

appellant and respondents to compensation to be awarded in respect of the

acquisition of land under the Public Lands Acquisition Ordinance 1923

(Nigeria). A grant of an estate in fee simple had been made to a headman

placed in charge of the compound. The respondents were occupiers of the

compound and the appellant was the paramount chief. Neither the

appellant nor the respondents were named in the grant, thought both were

held to have rights in the land under custom and both were entitled to

compensation, as the grant did not affect the respective rights of the chief

and the occupants to compensation. The Privy Council stated at 670:

One other matter here must be mentioned. … It was the custom to

put a headman in charge of each of the compounds, and when

Government grants came to be issued the headmen were encouraged

to get a Government grant. It has, however, been decided, and their

Lordships have no intention of interfering with this decision, that

grants given in such circumstances were really only grants in trust,

and indeed left the property exactly as it was. This is a peculiar result. In

262 Faulkner at 366. 263 Berriedale Keith A, “Land Tenure in Nigeria” (1912) 43 J Royal African Soc 325; Meek CK

op cit; Amodu Tijani; Sunmonu v Disu Raphael [1927] AC 881, 884-885; Idewa Inasa v

Sakarivawa Oshodi [1934] AC 99, 101; Adeyinka Oyekan v Musendiku Adele; Oshodi v

Balogun [1936] 2 All ER 1632 (citing headnote: “The grant of a customary right to land to B,

in the form of a grant of an estate in fee simple, did not permit B to transfer a fee simple title

in the property without the consent required by custom.”) 264 Sakariyawo Oshodi v Moriamo Dakolo [1930] AC 667. 265 Chapter 4 footnote 106.


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truth Government grants are in their form inconsistent with the whole

idea of native rights. They point to a transition state, but it is for

legislation and not for the Board to bring to an end such a peculiar

state of affairs as regards title. But the result in this case is not

doubtful. It makes it impossible for the respondents either to improve

their own position or detract from that of the plaintiff by pointing to

the Government grant in favour of [the headmen] Okilu. (Emphasis

added)

The Privy Council is stating that a Crown grant, being in the form the grant

of rights from the Crown to one holder of rights under traditional law, is

“inconsistent with the whole idea of native rights”, because traditional

rights are not acknowledged in the grant. However, the law and practice of

the jurisdiction indicate that the grant is a device meant to acknowledge

rights under traditional law rather than extinguish them: “This is a peculiar

result”, but it is the established law. The court had open two possibilities:

the grant to one traditional right holder extinguished all other traditional

rights (the approach rejected), or the grant was seen as a mere

conveyancing device, not simply leaving undisturbed traditional rights, but

protecting those rights under English law, notwithstanding the use of

“inapplicable” or inappropriate language (the approach adopted). The case

does not stand for the extinguishment of native title by grant, or the

replacement of traditional rights with rights under English law, as such

conclusions were not the clear and plain intention of the relevant

legislation. In jurisdictions where traditional laws and customs are a direct

source of law, grants are construed to reflect such law.

(iv) Canadian jurisprudence

It is only in Canadian jurisprudence that the argument that the grant of an

estate in fee simple under general legislation to a third party extinguishes

native title has not been unambiguously rejected. Uncertainty about the

relationship between the Crown grant of an estate in fee simple and native

title was indicated in the Federal Court decision of Baker Lake.

Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513,

549

In Baker Lake, Mahoney J stated that the grant of a Royal Charter which

included a grant “in free and common Socage”266 of the relevant land to the

Hudson Bay Company was not intended to extinguish Aboriginal title, as

this was effected “by cession or sword” rather than “the incidents of a title

peculiar to English law”.267 The purpose of the grant “was intended solely

266 Baker Lake at 547: “in free and common Socage … YIELDING AND PAYING yearly to us

two Elkes and two Black beavers”. 267 Baker Lake at 548.


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to define its [the grantees] ownership of the land in relation to the Crown,

not to extinguish the aboriginal title”.268 All this seems clear. However the

following passage, referred to in Fejo, occurs at page 549:

The coexistence of an aboriginal title with the estate of the ordinary

private land holder is readily recognized as an absurdity.269

As no issue of granting an estate in fee simple arose in the case, this

passage is obiter dicta. The passage indicates a problem to be solved, not a

solution. Canadian courts are yet to rule on whether the Crown can grant

an interest in land while Aboriginal title exists over that land.270

Delgamuukw BCCA

Fejo refers to the decision of the British Columbia Court of Appeal. In

Delgamuukw, McEachern CJ, at first instance, held that British Columbian

Colonial Ordinances in 1858 authorizing the Crown to grant fee simple title

to third parties implicitly extinguished all Aboriginal title. He started from

the proposition, citing St Catherine’s Milling, that native title is “personal

and usufructuary” dependent upon the good will of the Sovereign.271

Native title was extinguished because: “the Crown with full knowledge of

the local situation fully intended to settle the colony and to grant titles and

tenures unburdened by any aboriginal interests”.272

Moreover, this intention to extinguish did not only apply to lands

that had actually been granted to third parties, but rather all Crown

land in British Columbia. 273

No Justice in the Court of Appeal nor in the Supreme Court, agreed with

either of these propositions. In the Court of Appeal (decided before Fejo)

the argument that general legislation, or the grant of an estate in fee simple

under general legislation, was intended to extinguish native title was

rejected.274 Additionally, some judges rejected the proposition that an estate

268 Baker Lake at 549. 269 Baker Lake at 549 270 In Aboriginal title cases, First Nations have not generally asserted claims over lands

owned in fee simple by third parties. They have sought compensation from the Crown for

wrongfully granting those lands to third parties. In Skeetchestn Indian Band and

Secwepemc Aboriginal Nation v Registrar of Land Titles, Kamloops [2000] BCCA 525 the BC

Court of Appeal held that a claim of aboriginal title was not a claim for “an estate or interest

in land” that was registrable under the Land Title Act, RSBC 1996, c250. At [5] Southin J

noted: “Sooner or later, the question of whether those who hold certificates of indefeasible

title … are subject to claims of aboriginal right must be decided.”. 271 Set out in Delgamuukw at [17]. 272 Set out in Delgamuukw at [24]. 273 Set out in Delgamuukw at [24]. 274 McFarlane JA in Delgamuukw BCCA (1993) 104 DLR (4th) 470 held that the plaintiffs'

aboriginal rights were not extinguished by the colonial instruments enacted prior to British


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in fee simple was necessarily inconsistent with native title.275 The relevant

argument was set out by McFarlane JA:

That is, if priority were to be given to a fee simple title over an

aboriginal title, by the application of an appropriate legal principle about

priorities, then the fee simple title may extinguish the aboriginal title

of exclusive occupancy in the same land …276 (emphasis added)

However, this argument did not have to be considered for various reasons,

including his view that the Provincial Crown lacked constitutional power

to extinguish native. Subsequently to Fejo, Lamer CJ, speaking for the

Supreme Court, affirmed the need for a clear and plain intention in

Delgamuukw:

I have come to the conclusion that a provincial law of general

application could not have this effect [extinguish native title], for two

reasons. First, a law of general application cannot, by definition, meet

the standard which has been set by this Court for the extinguishment

of aboriginal rights without being ultra vires the province. That

standard was laid down in Sparrow, supra, at p. 1099, as one of “clear

and plain” intent. In that decision, the Court drew a distinction

between laws which extinguished aboriginal rights, and those which

merely regulated them. Although the latter types of laws may have

been “necessarily inconsistent” with the continued exercise of

aboriginal rights, they could not extinguish those rights. While the

requirement of clear and plain intent does not, perhaps, require that

the Crown “use language which refers expressly to its

extinguishment of aboriginal rights” (Gladstone, [R v Gladstone [1996]

2 SCR 723] supra, at para. 34), the standard is still quite high. My

concern is that the only laws with the sufficiently clear and plain

intention to extinguish aboriginal rights would be laws in relation to

Indians and Indian lands.277

Columbia's entry into Confederation in 1871, and held that the province did not have the

power after 1871 to extinguish aboriginal rights. Wallace JA agreed with Macfarlane JA;

Lambert JA (diss) at 312 held that in the case of an inconsistency between a Crown grant of

land and aboriginal title, aboriginal title should not necessarily give way in the absence of a

clear and plain intention to extinguish it. Hutcheon JA (diss in part) held that colonial

enactments did not extinguish aboriginal rights and found it unnecessary to decide whether

a grant in fee simple extinguishes aboriginal title or whether a right to compensation arises

in such circumstances. 275 McFarlane JA in Delgamuukw BCCA (1993) 104 DLR (4th) 470 at 532: “The fact that an

Indian people have an aboriginal title to the occupancy, possession, use and enjoyment of a

parcel of land is not necessarily inconsistent with the holding of a fee simple title to the same

land by someone else, unless either party decides to try to exclude the other.” 276 McFarlane JA in Delgamuukw BCCA (1993) 104 DLR (4th) 470 at 532. 277 Delgamuukw at [180] per Lamer CJ.


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Aboriginal use-rights not extinguished by grant of an estate in fee simple

In Canadian jurisprudence, Aboriginal use-rights have been held not to be

necessarily extinguished by the grant of an estate in fee simple. In R v

Badger278 the Supreme Court held that an Aboriginal right to hunt on land,

which had been confirmed by treaty, was not extinguished by a pre-1982

grant of an estate in fee simple over the land. The two rights with respect to

land could co-exist to the extent that the grantee was not putting the lands

to a use that was incompatible with hunting. Treaty No. 8 had recognised a

right to hunt on land not “taken up” and the court accepted that the

Indians would have understood this to mean that there must be some

physical evidence of land use. Badger can be explained in terms of a lack of

any inconsistency for rights. Access to land held under an estate in fee

simple to practise aboriginal rights as opposed to treaty rights, was

considered in R v Alphonse.279 That case concerned a prosecution for

hunting out of season. The accused alleged that he was exercising an

aboriginal right at the time. Macfarlane JA concluded that if the relevant

legislation did not restrict the aboriginal rights in question, then those

rights could be exercised on private land without the consent of the owner:

Applying the Trespass Act to the circumstances of this case, there was

no prohibition with respect to hunting on the lands in question. That

being so, it was not unlawful to hunt on those lands. Thus, it was not

unlawful to exercise an aboriginal right on those lands. 280

Alphonse more directly raises the issue of extinguishment of native title use

rights by the grant of an estate in fee simple. The grant did not make

unlawful an activity that fell with the native title right. However, the court

did not expressly determine whether the mere presence of native title

holders on land subject to an estate in fee simple would be trespass against

the holder of the estate in fee simple. But whatever rights the holder of the

estate in fee simple might have against the native title holders, the right

against the world of native title holders to use the land for hunting was not

extinguished. Badger and Alphonse indicate, for different reasons, that

Aboriginal rights may be exercised on land over which an estate in fee

simple has been granted. Similarly in Hunt281 and Harper Ranch,282 the BC

278 R v Badger [1996] 1 SCR 771. 279 R v Alphonse (1993) 80 BCLR (2d) 17 (CA). 280 R v Alphonse at [34]. 281 Hunt v Halcan Log Services Ltd [1987] 4 CNLR 63. Each of the parties sought an

interlocutory injunction to stop the other from interfering with proprietary and other rights

to Deer Island. The Kwakiutl Indian Band sought an injunction to restrain Halcan from

logging on the Island until the trial of asserted aboriginal and treaty rights to the land.

Halcan sought to restrain the Indian band members from trespassing or obstructing

Halcan's access to the land they had purchased. They asserted ownership in fee simple and

also a permit to log issued by the Ministry of Lands and Forests. 282 Jules v Harper Ranch Ltd [1989] 3 CNLR 67 raised similar issues.


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Supreme Court granted injunctions, on the basis of the need to protect an

asserted Aboriginal right, to restrain infringement of that right by logging

that was carried out by the fee simple owners of the land, on the basis that

the grant of an estate in fee simple did not necessarily extinguish native

title. The cases were subsequently settled.

A conclusion on Canadian jurisprudence

Canadian jurisprudence holds that before the Crown grants interests in

land, it must acquire Aboriginal title, and the failure to acquire Aboriginal

title first, makes the subsequent Crown grant voidable.283 Canadian

jurisprudence has not adopted propositions inconsistent with that

approach.

(f) Effect of the Racial Discrimination Act on grants of estates in fee

simple

The statutory guarantee of equality before the law in s.10 of the RDA284

applies with respect to the right “to own and inherit property (including a

human right to be immune from arbitrary deprivation of property)”,285 and

the operation of s.10 is twofold:

• Where a State or territory law extinguishes only native title and leaves

other titles intact, the discriminatory extinguishment is removed

because the State or territory law is rendered invalid by s.109 of the

Constitution;286

• Where a State or territory law provides for the extinguishment of land

titles but provides for compensation only in respect of non-native title,

while the extinguishment remains valid, a right to compensation is

provided to native title holders. 287

Mabo 1 held that the provisions of RDA were “an important restraint upon

State or Territory legislative power to extinguish or diminish common law

native title”.288 The decision in Mabo was that at common law, the Crown

grant of rights under Crown lands legislation can extinguish all property

rights, including those created by prior Crown grant, but there is a

283 §6.1(b) (iv) Canadian jurisprudence: Crown must have title before grant. 284 Set out at §3.3(b) Denial of native title as a denial of the right to enjoy property contrary to

the guarantee of equality before the law in the RDA . 285 Mabo 1 at 217; similarly Ward at [119] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 286 Ward at [108] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: The “State law, for

example, extinguishes only native title and leaves other titles intact … the discriminatory

burden of extinguishment is removed because the operation of the State law is rendered

invalid by s 109 of the Constitution.” 287 Ibid: “a State law, for example, provides for the extinguishment of land titles but provides

for compensation only in respect of non-native title… whilst the extinguishment remains

valid, there is …a right to compensation provided to native title holders”. 288 Mabo at 112 Deane and Gaudron JJ.


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presumption against derogation of property rights, limited to property

rights derived from prior Crown grant (and according to Fejo all non-native

title rights are presumed to derive from Crown grant), and therefore a

Crown grant under Crown lands legislation extinguishes only the rights of

native title holders. But this common law principle with respect to the

interpretation of grants under statutory authority is modified by the RDA

because the common law principle is discriminatory in singling out native

title and invidiously distinguishing native title from other property rights.

The effect of the Mabo reasoning is that common law doctrine can single out

native title and accord it a lesser level of protection to that accorded other

property rights. The common law can deny substantive equality before the

law to native title. In Mabo 1 the same outcome (lesser protection), which

flowed from the legislative extinguishment of native title under State law,

as opposed to the common law extinguishment of native title, was held to

be invalid. Mabo 1 held that the effect of the Queensland Coast Islands

Declaratory Act 1985 was to extinguish only native title rights, leaving other

property rights unaffected, arbitrarily depriving only native title holders of

their property rights. If State legislation enables the grant of an interest in

land that extinguishes only native title rights, but not non-native title

rights, that is discrimination:

If a law of a State provides that property held by members of the

community generally may not be expropriated except for prescribed

purposes or on prescribed conditions (including the payment of

compensation), a State law which purports to authorize expropriation

of property characteristically held by the “persons of a particular

race” for purposes additional to those generally justifying

expropriation or on less stringent conditions (including lesser

compensation) is inconsistent with s 10 of the Racial Discrimination

Act.289

As explained in Ward, RDA protection would arise where a “State law

provided for differential treatment of land holding according to race”,290

and native title “characteristically is held by members of a particular

race”.291 It did not matter whether or not the “native title rights and

interests amount to rights of ownership equivalent to the rights of

ownership enjoyed by others”.292 The RDA prohibits a denial of substantive

equality before the law to native title.

289 Native Title Act Case at 437. 290 Ward at [113] per Gleeson CJ, Gaudron, Gummow and Hayne JJ . 291 Ward at [117] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “It is because native title

characteristically is held by members of a particular race that interference with the

enjoyment of native title is capable of amounting to discrimination on the basis of race,

colour, or national or ethnic origin”. 292 Ward at [118] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: see at §3.3(b) Denial of

native title as a denial of the right to enjoy property contrary to the guarantee of equality

before the law in the RDA .


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(g) Conclusion

While there is no doubt that rights under a Crown grant may be

inconsistent with native title rights, and that the idea of two competing

rights of exclusive possession to land is an absurdity, the fact of

inconsistency does not determine the legal relationship between two rights.

The issue is resolved by “an appropriate legal principle about priorities”.

Allodial title is a right of dominium against the whole world. The grant of an

estate in fee simple removes rights of dominium from the Crown’s allodial

title (fictional under English law and actual under colonial law) and

explains why the Crown cannot grant a further estate in fee simple over

that land. The doctrine of allodial title also explains why a common law

estate in fee simple is a right against the world. The Crown as source of

title, and the doctrines of tenure and estates, explain why the grant of an

estate in fee simple is good against the Crown. However, the validity of a

claim of right by a Crown grantee against all except a person with a better

relative title, or the true owner, does not determine the validity of the

grantee’s claims as against those with a better relative title or the true

owner. As against native title holders, the Crown has no interest in land,

has no better relative title and is not the true owner of the land. True rights

in rem under Crown grant can only be asserted if native title property rights

have been extinguished. In the absence of the alienation of native title to the

Crown, or the extinguishment of native title pursuant to a clear and plain

legislative intention, the burden of native title, according to the

comparative jurisprudence, has not been removed.

The approach in Australian and comparative jurisprudence, that a clear

and plain legislative intention is required to achieve the destruction of

property rights, and the approach in the comparative jurisprudence that a

clear and plain legislative intention is required to achieve the destruction of

native title, does not apply to protect native title, because that is not “the

question”, or if that is the question, the common law foster child of native

title is not a true common law right or is not true property.

Mere Crown use of land is no longer argued to extinguish native title.

However, the search for an appropriate legal principle about priorities in

Australian jurisprudence always returns to the bare assertion that the legal

relationship between native title rights and other common law rights is

determined on the basis that if there is an inconsistency of rights, rights

under Crown grant prevail over fragile native title rights. The principle

rests on two bases: because native title enters the common law as a

compromised form of right and property (as either a fragile right or fragile

property), and because there is a newly created common law principle – the

destruction of fragile property rights by Crown grant - the intended effect

of a Crown grant is the destruction of accrued or vested property rights not


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sourced in Crown grant. Native title is a fragile right because its source is

not a Crown grant. The fragility of native title is the priority principle

created by Australian jurisprudence. This priority principle is contrary to

the statutory guarantee of equality before the law under the RDA and the

common law principle of equality before the law.293 The principle of right

recognition set out in the comparative jurisprudence and Mabo – full

respect - has not been applied in Australian jurisprudence.

293 §3.3(a) The doctrine of absolute Crown ownership as a denial of the common law

principle of equality before the law


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§6.4 Compensation for extinguishment of native title

An obligation to pay compensation for the taking of a property right can

arise in two distinct situations. The first is that the taking of property

pursuant to legislative provision, or executive act under legislative

authority, is presumed to be on the basis that compensation is payable for

the taking. The compensation presumption complements the presumption

against legislative taking of property without a clear and plain intention.294

The second is that where a property right has been wrongfully infringed or

taken, the appropriate remedy for that wrong may be an award of

compensation, rather than a remedy to regain possession, such as ejectment

or return of the object taken.

It can be accepted that native title as a right to use and control land is a

“valuable right”.295 In Canada, New Zealand and the USA, the taking of

native title by agreement or compulsory acquisition has involved the

payment of compensation. In court decisions determining the quantum of

compensation, the value of native title has generally been equated to the

value of freehold title over land: “full ownership”296 or a “fee simple”.297 It

is not possible here to examine what are the appropriate principles for

calculating the quantum of compensation or damages for taking native

title, to the extent that such principles should provide full respect to

indigenous perspectives in terms of the loss suffered.298

(a) Presumption to compensation for taking property

There is no prerogative power to take land, 299 and legislation will not be

presumed to allow the taking of property without the payment of

compensation. 300 The taking of a property right without compensation is

294 See §6.2(a) Extinguishment of property rights requires clear and plain intention. 295 Minister of State for the Army v Dalziel (1944) 68 CLR at 290 per Starke J: property

“extends to every species of valuable right and interest including real and personal

property, incorporeal hereditaments such as rents and services, rights of way, rights of

profit or use in land of another, and chooses in action …to acquire any such right is rightly

described as an acquisition of property.” 296 Amodu Tijani, 403-404. 297 Geita Sebea v Territory of Papua (1941) 67 CLR 544 at 557 per Williams J. 298 For example, Campbell D, Economic Issues in Valuation of and Compensation for Loss of

Native Title Rights (Canberra: AIATSIS, 2000); Litchfield J, “Compensation for Loss and

Impairment of Native Title Rights and Interests: An analysis of suggested approaches”

(1999) 18 AMPLJ 263 (Part 1). Compensation is “full compensation for what is lost”:

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297

at 311 per Brennan J. 299 Attorney-General v De Keyser’s Royal Hotel [1920] AC 508 at 569: “Since Magna Carta

the estate of a subject in lands or buildings has been protected against the prerogative of the

Crown.” 300 Pearce and Geddes op cit at [5.17]-[5.19]. Commonwealth v Hazeldell Ltd (1918) 25 CLR

552 at 563: “If this is the law, persons in the position of the respondents may be suddenly

and arbitrarily and without compensation dispossessed of valuable rights of property. It is a


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not merely the destruction of vested rights, and not merely the removal of a

source of livelihood. Dispossession without compensation involves turning

the dispossessed into “mendicants for a place to live. Judged by any

civilized standard, such a law is unjust”. 301 It offends the values of

Australian law. In Central Control Board v Cannon Brewery Company302 the

issue was whether the board were empowered “to acquire compulsorily

the fee simple … without paying compensation therefor beyond such sum

as might by an act of grace be awarded to the respondent company”,303 as

the relevant Act and regulations were silent as to compensation.

That canon is this: that an intention to take away the property of a

subject without giving to him a legal right to compensation for the

loss of it is not to be imputed to the Legislature unless that intention

is expressed in unequivocal terms.304

… though this statute provides for the acquisition of land and

business premises, if needed …, it gives no indication whatever as to

whether the property taken by the Government authority shall be

paid or compensated for, or if paid or compensated for, by whom…

On the other hand, it contains not a single clause expressing in any

kind of language, clear and unequivocal, or obscure and ambiguous,

that the owners of the property acquired are not to be paid or

compensated for it.305

(b) Presumption to compensation for taking native title

The principle of compensation for the taking of property has been applied

to the taking of native title in comparative jurisprudence.306 Lord Denning,

speaking for the Privy Council in Adeyinka Oyekan, set out the guiding

principle:

The courts will assume that the British Crown intends that the rights

of property of the inhabitants are to be fully respected. Whilst,

therefore, the British Crown, as Sovereign, can make laws enabling it

compulsorily to acquire land for public purposes, it will see that

proper compensation is awarded to every one of the inhabitants who

settled rule of construction that such an intention cannot be imputed to the Legislature

unless expressed in unequivocal terms incapable of any other meaning.” Similarly Attorney-

General v De Keyser’s Royal Hotel [1920] AC 508 at 569. 301 Mabo at 29 per Brennan J. 302 Central Control Board v Cannon Brewery Company Ltd [1919] AC 744. 303 Central Control Board at 752. 304 Central Control Board at 752; similarly Attorney-General v De Keyser’s Royal Hotel Ltd

[1920] AC 508 at 542: “unless the words of the statute clearly so demand, a statute is not to be

construed so as to take away the property of a subject without compensation.”. 305 Central Control Board at 754. 306 §2.2(c) Compensation for extinguishment of native title.


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has by native law an interest in it: and the courts will declare the

inhabitants entitled to compensation according to their interests, even

though those interests are of a kind unknown to English law.307

Australian jurisprudence is unique in holding that the above principle does

not apply to the total or partial extinguishment of native title.

(c) Damages for interference with property or native title rights

Australian and comparative jurisprudence hold that native title is a legal

right protected by common law or statutory remedies against

interference.308 Native title holders may bring actions to protect their rights

unless their right of action has been abolished or modified.309 The remedy

determines the practical meaning of the right. Courts have a wide

discretion to award a remedy “appropriate” to the specific circumstances of

a case.310 Hence in Nireaha Tamaki the Privy Council held that New Zealand

courts had jurisdiction to restrain a proposed grant of title to third parties if

there had been no prior acquisition of Maori title.311 A dispossessed holder

of title may recover possession. Where a trespasser builds a structure on the

land of a person with better relative title, the holder of the better title can

eject the trespasser or seek damages, and can enforce the removal of the

offending structure or retain it.312

The remedy of damages focuses on the loss to the wronged party,313 while

restitution focuses on the gain to the doer of the wrong. The concept of

307 (1957) 1 WLR 876 at 880. 308 Mabo at 113 per Deane and Gaudron JJ: “true legal rights … protected and enforced by

proceedings in the ordinary courts” 309 Ngati Apa [41] per Elias CJ: “From the enactment of the Native Lands Act 1909, Maori

owners have been prevented from taking action in the courts for recovery of possession of

customary land or to prevent or claim damages for trespass to such land ( Native Land Act

1909 (NZ) s88; Te Ture Whenua Maori Act 1993 (NZ) s144). Only the Crown can bring such

proceedings to court on behalf of the beneficial owners. In such proceedings, the land is

“deemed” to be Crown land within the meaning of the Land Act 1948. For present purposes,

the fact that such deeming for limited purposes is necessary emphasises that customary land

is property recognised by New Zealand law which is not owned by the Crown.” 310 Giumelli v Giumelli (1999) 196 CLR 101 at [10]: “At the heart of this appeal is the question

whether the relief granted by the Full Court was appropriate”; Hospital Products Ltd v

United States Surgical Corporation (1984) 156 CLR 41 at 125–126 (Deane J) 311 Nireaha Tamaki at 575: “Their Lordships hold that an aggrieved person may sue an

officer of the Crown to restrain a threatened act purporting to be done in supposed

pursuance of an Act of Parliament, but really outside the statutory authority.” 312 Brand v Chris Building Society [1957] VR 625. 313 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39, per Lord Blackburn: “where

any injury is to be compensated by damages, in settling the sum of money to be given for

reparation of damages you should as nearly as possible get at that sum of money which will

put the party who has been injured, or who has suffered, in the same position as he would

have been in if he had not sustained the wrong for which he is now getting his

compensation or reparation.” Similarly Commonwealth v Amann Aviation Pty Ltd (1991)

174 CLR 64.


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“compensatory damages” is normally confined to situations where the

wrong does not result in any unjust enrichment to the wrongdoer, or where

the wronged party does not seek recovery of the enrichment. Remedies

awarded for interference with Aboriginal title include damages, and claims

for damages have generally been settled, courts dealing only with

challenges to the right to bring the action for damages.314 An award of

damages was taken to be the appropriate remedy in Chippewas of Sarnia:

As we have concluded that there was no proper surrender [to the

Crown]…the issue becomes whether, on the facts of this case, the

Chippewas are entitled to the remedies they seek, namely, a

declaration that the Cameron patent is void and a declaration that

they are entitled to possession of the disputed lands. …

…. the Chippewas assert a claim to a property right against the

private citizens who are the present occupiers of the property,

invoking the legal principles governing the reconciliation of

competing claims to private property. ….

As we have already noted, the issue of the Chippewas’ right to

damages against the Crown for breach of its aboriginal rights is not

before us … and it was common ground that it would proceed to

trial. Accordingly, we confine our attention to the Chippewas’ claim

for a remedy related to the return of the lands themselves and we do

so on the basis that the Chippewas have a right of action against the

Crown for damages.315

In the exercise of its remedial discretion the court declined to make the

declarations sought.316

Australian jurisprudence is unique in holding, prior to Ward, that an act of

land use that would be a wrongful interference with native title rights

giving rise to a remedy such as damages if done by a subject, would, if

done by the Crown, not only be valid, but would extinguish native title. 317

314 Stoney Creek Indian Band v Alcan Aluminum [1999] 1 CNLR 192 involved applicants

seeking various remedies including damages for trespass, trial Judge holding that the action

was not statute-barred. 315 Chippewas of Sarnia at [243]-[247]. 316 Chippewas of Sarnia at [305]: “For these reasons, we conclude that established rules

governing the availability of public and private law remedies require the court to take into

consideration the Chippewas’ delay in asserting its claim and the reliance of innocent third

parties on the apparent validity of the Cameron patent. On the facts of this case, it is our

view that the Chippewas’ delay, combined with the reliance of the landowners, is fatal to

the claims asserted by the Chippewas.” 317 §6.3(a) Crown use of land does not extinguish native title.


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(d) Comparative jurisprudence: a right to compensation for the


Government policy in Canada, New Zealand and the USA has been to

accept a right to compensation and to settle claims for compensation or

damages with respect to the loss of native title, or loss of Aboriginal rights

(especially fishing rights) including claims arising from the interference

with such rights, by various forms of comprehensive settlement not based

on traditional legal structures and not determining the common law rights

of native title holders over the relevant resources. 318

(i) New Zealand

The payment of compensation or making of compensation agreements for

the infringement or taking of Maori title or Maori rights, including all land

confiscations and orders of the Native Land Court converting Maori

customary title into statutory alienable Maori freehold title, is government

policy in New Zealand.319

(ii) Canada

Payment of compensation for the legislative infringement or taking

Aboriginal title or Aboriginal rights is required to make such actions lawful

as a result of the Constitution Act 1982 (Can).320 Prior to 1982, the “general

principle” was that “existing aboriginal interests in the lands …even

though those interests might not be of a type recognized by British law

…were to be removed only by solemn treaty with due compensation”.321

No case in Canada has held that Aboriginal rights or title could be taken

without compensation at common law, or by legislation that did not

manifest a clear and plain intention to this effect.

318 New Zealand: see §2.2(c)(i) Compensation for extinguishment of Maori title; Canada: for

example, following the 1973 and 1986 Comprehensive Land Claims Policy, agreements

include James Bay and Northern Quebec Agreement (1975); Inuvialuit Final Agreement

(1984); Nunavut Land Claims Agreement (1993); Nisga’a Agreement (2000); Labrador Inuit

Agreement (2005) see INAC, General Briefing Note on the Comprehensive Land Claims

Policy of Canada (March 2007) http://www.ainc-inac.gc.ca/ps/clm/gbn/index_e.html. US:

ANCSA, see footnote 235; similarly Maine Indian Claims Settlement Act 1980, 25 USC §§

1721-1735; The largest remaining claim is the Oneida claim. Newton op cit at 257-58 notes:

With respect to “states [which] had purchased tribal land in violation of … the

Nonintercourse Act… [Indian title] claims …continue to cloud the titles of landholders in

the affected areas.” 319 §2.2(c)(i) Compensation for extinguishment of Maori title 320 §2.2(c)(ii) Compensation for extinguishment of Aboriginal title 321 Van der Peet at [275] per McLachlin J (diss). Delgamuukw per La Forest at [203]: “Indeed,

the treatment of “aboriginal title” as a compensable right can be traced back to the Royal

Proclamation“.


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(iii) US jurisprudence

In US jurisprudence the extinguishment of recognised and unrecognized

Indian title requires the payment of compensation either under general law

or because Indian title is “property” under the Constitution.322

(e) Australian jurisprudence: no presumption to compensation for the


Australian law acknowledges that native title is a right protected by

common law and statutory remedies, but holds that prior to the RDA the

Crown can interfere with or take native title rights pursuant to legislative

acts, or executive acts under the authority of legislation, without a right to

compensation arising as a matter of legislative presumption.

(i) Mabo 1: a presumption to compensation affirmed

It was said in Mabo 1 by Deane J:

If the [Queensland Coast Islands Declaratory Act 1985 (Qld)] Act did

have that effect, its operation would be to compulsorily deprive the

plaintiffs and those whom they represent, without compensation, of

all traditional personal and communal proprietary rights and

interests to and in their ancestral homelands. The general provisions

of the Act should not, as a matter of settled principles of construction,

be construed as intended to bring about such a compulsory

deprivation of proprietary rights and interests without compensation

if they are susceptible of some other and less burdensome

construction.323

This approach was applied by a minority in Mabo: Deane and Gaudron JJ

and Toohey J.

(ii) Mabo 2: a presumption to compensation denied

As the High Court noted in the Native Title Act Case, it is somewhat

artificial to look for any intention with respect to the effect of legislation on

native title in Crown lands legislation when “Aborigines and their title to

land were ignored”.324 Accordingly, where there is no indication as to the

effect of any grant of right on native title, the legislative presumption

322 §2.2(c)(iii) Compensation for extinguishment of Indian title. 323 Mabo 1 at 223 per Deane J. 324 Native Title Act Case at 433 per Mason CJ, Brennan, Deane, Gaudron, Toohey, McHugh

JJ.


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would be that compensation is payable. 325 However, the High Court

majority in Mabo (Mabo 2) came to a different conclusion. On Mer, it had

been occasional Queensland government policy to pay for the taking of

land from the Meriam people.326

Deane and Gaudron JJ: a presumption to compensation

In Mabo Deane and Gaudron JJ held that:

The ordinary rules of statutory interpretation require, however, that

clear and unambiguous words be used before there will be imputed

to the legislature an intent to expropriate or extinguish valuable

rights relating to property without fair compensation.327

It followed that:

If lands in relation to which such title [native title] exists are clearly

included within the ambit of such legislation… the power of the

Crown wrongfully to extinguish the native title by inconsistent grant

will remain but any liability of the Crown to pay compensatory

damages for such wrongful extinguishment will be unaffected.328

The propositions set out by Deane and Gaudron JJ are clear: a presumption

to compensation for the extinguishment of native title.

Toohey J: a presumption to compensation

As Toohey J declined to find that any native title had been extinguished,329

no issue of compensation arose. However, Toohey J applied the principle

set out Central Control Board to hold that a presumption to pay

compensation applied to the extinguishment of native title.330

325 Similarly Wik at 248 per Kirby J: “Although the legislators in 1910 and 1962 did not know

of the existence of native title, it should be presumed that, had they known, Parliament

would have acted to protect such rights against uncompensated expropriation.” 326 Noted in Mabo at 126-127 by Dawson J. 327 Mabo at 110-111 per Deane and Gaudron JJ. In Wik at 155 Gaudron J maintained this

view: “As Deane J and I explained in Mabo the rule ..is simply a manifestation of the general

and well settled rule of statutory construction which requires that “clear and unambiguous

words be used before there will be imputed to the legislature an intent to expropriate or

extinguish valuable rights relating to property without fair compensation”. 328 Mabo at 111 per Deane and Gaudron JJ. 329 Mabo at 196-97 per Toohey J: “Whether that lease was effective to extinguish the

traditional title of the Meriam people to Dauer and Waier, again is a question the Court was

not asked to answer and no relief is claimed in regard to that transaction. In those

circumstances it is unnecessary to say more about the lease”. 330 Mabo at 195 per Toohey J quoting from Central Control Board set out in footnote 304.


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Mason CJ, Brennan J, McHugh J, Dawson J: no presumption to

compensation

Mason CJ and McHugh J

The specific finding in Mabo with respect to compensation was that of

Mason CJ and McHugh J:

The main difference between those members of the Court who

constitute the majority is that, subject to the operation of Racial

Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with

the conclusion to be drawn from the judgments of Deane, Toohey and

Gaudron JJ that, at least in the absence of clear and unambiguous

statutory provision to the contrary, extinguishment of native title by

the Crown by inconsistent grant is wrongful and gives rise to a claim

for compensatory damages. We note that the judgment of Dawson J.

supports the conclusion of Brennan J. and ourselves on that aspect of

the case since his Honour considers that native title, where it exists, is

a form of permissive occupancy at the will of the Crown.331

Mason CJ and McHugh J did not explain how they came to this conclusion,

and nowhere in his judgment did Brennan J state that compensation was

not required to be paid with respect to the pre-RDA extinguishment of

native title, although he agreed with the summary. The summary is a

rejection of both a legislative presumption of compensation and a right to

damages for wrongful taking.

Dawson J

Dawson J considered that as native title was a permissive occupancy there

was “no general proposition …that the Crown is legally bound to pay

compensation for the compulsory acquisition of land or any interests in it

by the exercise of sovereign rights.”332

Brennan J

In querying the theory of the Crown as absolute beneficial owner of all

land, Brennan J also queried the proposition that:

331 Mabo at 15 per Mason CJ and McHugh J. 332 Mabo at 126-127 Dawson J held that payments which had been made for “transactions …

variously referred to as a “sale”, a “disposal”, an “acquisition” or a “purchase” … were

made … for the loss of use of the land rather than for the acquisition of any rights …In my

view there was no legal obligation to give such compensation and the giving of it is

explicable on the grounds that it was desirable to avoid ill-feeling …[even though] on

occasions land on the Murray Islands has been referred to as being “owned” by or

“belonging to” the native inhabitants and .. in one instance land was … “resumed”.”


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the common law itself took from indigenous inhabitants any right to

occupy their traditional land …[and] vested the land effectively in the

control of the Imperial authorities without any right to compensation

and made the indigenous inhabitants intruders in their own homes

and mendicants for a place to live. Judged by any civilized standard,

such a law is unjust and its claim to be part of the common law to be

applied in contemporary Australia must be questioned. 333 (emphasis

added)

In the above passage, Brennan J is indicating only that vesting the land in

the Crown without the payment of compensation is unjust. However, there

is nothing to distinguish this proposition from a proposition that vesting

the land in a third party, extinguishing native title without payment of

compensation, is also unjust.

(iii) The extinguishment of native title as the Crown acquisition of a right

Brennan J otherwise made no finding concerning a right to compensation

or compensatory damages. The only meaningful discussion of

compensation by Brennan J is that which appears in the Mabo summary.

However, Brennan J referred to case law which required compensation to

be paid for the extinguishment of the native title, quoting the guiding

principle in Adeyinka Oyekan, that when the Crown makes “laws enabling it

compulsorily to acquire land for public purposes, it will see that proper

compensation is awarded”,334 saying that “We are not concerned here with

compensation for expropriation but we are concerned with the survival of

private rights and interests in land and their liability to be extinguished by

action of the Crown”.335 Brennan J used the word “expropriation” on only

one other occasion in Mabo, similarly as a description of the acquisition of

property or ownership.336

The clear implication of Brennan J’s distinction between “expropriation”

and “extinguishment” is that the extinguishment of native title is not the

acquisition of property or ownership by the Crown. The logic of this

proposition is consistent with a Crown grant conferring “ownership” on

the grantee, but no property rights on the Crown. However, comparative

333 Mabo at 12 per Brennan J. Brennan J at 56-57 and Deane and Gaudron JJ at 82 also cited

with approval Lord Denning’s “guiding principle” statement in Adeyinka Oyekan v

Musendiku Adele. 334 Mabo at 56 per Brennan J cited with approval Lord Denning’s “guiding principle”

statement in Adeyinka Oyekan v Musendiku Adele. 335 Mabo at 56 per Brennan J. 336 Mabo at 25 per Brennan J: “If that submission be right, [ie acquisition of allodial title on

acquisition of sovereignty] the Queen took the land occupied by Meriam people on 1

August 1879 without their knowing of the expropriation; they were no longer entitled

without the consent of the Crown to continue to occupy the land they had occupied for

centuries past.”


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native title jurisprudence does not contain a distinction between acquisition

and extinguishment of native title, and Australian jurisprudence does not

reflect such a distinction with any clarity. The Mabo judgment of Brennan J

reflected two contradictory notions not then resolved by the High Court

majority: full respect for native title as communal “ownership” (raising the

issue of Crown acquisition of ownership and communal loss of

ownership337), and the fragility of native title, not Brennan J’s expression

but exemplified by his proposition that native title ownership could be

extinguished by mere Crown use of land.

In Mabo Deane and Gaudron JJ338 accepted that the extinguishment of

native title resulted in the transfer of a “right” to the Crown, and held that

extinguishment of native title, if done by the Commonwealth Crown,

would an acquisition of “property” under the Constitution.339

In Mabo Toohey J also equated the extinguishment of native title to the

taking of property. Having found no extinguishment Toohey J added in

obiter dicta that the RDA required the payment of compensation for the

compulsory acquisition of native title. His reasoning was that compulsory

acquisition legislation empowered the acquisition of property only on just

terms or other like phrase, and the effect of the RDA was to extend this

statutory right to compensation to the acquisition of native title. A “law”

which “purported to achieve” the “extinguishment of the traditional title of

the Meriam people without the compensation provided for in the

Acquisition of Land Act 1967 (Q)” would “offend s10(1)” of the RDA and

would be invalid.340 The effect of the RDA was that after 31 October 1975,

Crown lands legislation, to the extent that it permitted the grant of an

estate that extinguished native title without compensation, was invalid.

Subsequently in Ward the joint majority endorsed the proposition that post-

RDA , compensation was payable for the extinguishment of native title.341

337 The Wik majority and the Fejo joint majority avoided discussion of whether the valid

extinguishment of native title resulted in the Crown owning the land: see §6.1(e) Avoiding

the ownership debate. 338 In Mabo at 78, 94 and 97 Deane and Gaudron JJ three times distinguish “expropriation of

property or extinguishment of rights”, holding ultimately at 111 that any legislative

extinguishment of those rights would constitute “an expropriation of property to the benefit

of the underlying estate for the purposes of s.51(xxxi)” 339 Section 51(xxxi) of the Constitution confers legislative power on the Commonwealth

Parliament to make laws for “The acquisition of property on just terms from any State or

person for any purpose in respect of which the Parliament has power to make laws”. 340 Mabo at 216 per Toohey J. 341 Ward at [124] per Gleeson CJ, Gaudron, Gummow and Hayne JJ: “Finally, the legislation

may attract s.10 (1) of the RDA because it purports on its face to extinguish native title

without compensation or on less stringent conditions (including lesser compensation) than

those which govern the expropriation of the property of the people of another race.”

Specifically at [126]: “In other cases, involving different legislation, it will be appropriate to

compare the effect of that legislation upon native title holders with the effect on other title


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However, while quoting Toohey J’s judgment in Mabo, their reasoning did

not express a view on whether the extinguishment of native title was the

acquisition of property. The Native Title Act provides that with respect to

acts occurring before 31 October 1975, no compensation is payable for the

extinguishment of native title, by reason of the Native Title Act, leaving the

matter to the common law, but with respect to acts occurring after 31

October 1975, compensation on “just terms for any loss, diminution,

impairment or other effect of the act on their native title rights and

interests”342 is payable.343

(f) Conclusion

Australian jurisprudence has rejected the presumption that the legislative

extinguishment of the property right of native title is on the basis of

payment of compensation, without indicating why. Brennan J seemingly

reasons that the extinguishment of native title does not, per se, result in any

property or right being transferred to the Crown. But the extinguishment of

native perfects the Crown’s title to land. 344 A burden is removed.

To the extent that Australian jurisprudence bases the extinguishment of

native title on a denial that native title is a common law right, no issue of

compensation for the loss of a “right” arises. Even accepting such

reasoning, dispossession of Aboriginal communities was the result of the

grant of rights of occupation to others, and Aboriginal communities lost

their means of livelihood, even if they had no “right” to such livelihood. It

is, of course, impossible to accept that Australian law endorses the non-

right approach to native title. It is inconsistent with the values of Australian

law or wider conceptions of justice. Alternatively, it may be said that to the

extent that Australian jurisprudence bases the extinguishment of native

title on the denial of native title as “property”, no issue of compensation for

loss of “property” arises. Yet, in the recognition of native title, Australian

jurisprudence uses the language of full respect for property rights and sees

native title as a common law property right,345 not as a permissive

occupancy enjoyed at the goodwill of the Crown.

In positing native title as a lesser or fragile right, and more particularly as a

fragile property right, the basis for the Australian law of extinguishment of

native title is laid. Yet the recognition of native title as property simply

means that the presumption of a right to compensation for property loss is

engaged, in the absence of such legislation or the common law providing

holders. .. However, it may be that the power conferred by the legislation is exercised in a

manner that, as a matter of fact, is discriminatory and thereby engages s.10(1)”. 342 Native Title Act s.51(1) 343 Discussed in Bartlett R, Native Title in Australia (2ed Chatswood: LexisNexis, 2004)

Chapter 23 Compensation. 344 §6.1(b) Crown must have interests in land before it can grant interests in land 345 §4.4(b) The expression of traditional rights as property.


Page 224

any relevant basis to distinguish between property rights. The complete

silence by the Mabo majority as to how the presumption to compensation is

displaced means that any justification of such displacement is a matter of

speculation. Any justification must explain why the extinguishment of only

the native title property right, and not other rights of land use or control,

does not offend the common law principle of equality before the law.


page 225


RESPECT

___________________________________________________________________

The task facing every court is the determination of rights, and following that

determination, the determination of appropriate remedies if rights have been

infringed. The High Court in Mabo determined that native title was a right

recognized by Australian law, and that appropriate common law and statutory

remedies existed to protect it. However, Australian law has denied full respect to

native title as a right, title or as property. Rather than basing the extinguishment

of native title on the lawful exercise of authority, Australian jurisprudence has

legitimated every exercise of authority over land by the Crown. To do this,

Australian jurisprudence has conceptualised native title, not as a form of title or

ownership, but as a bundle of property rights, and has declined to equate the

property right of native title to other common law property rights. The

contradictions underlying the recognition and protection of native title in

Australian jurisprudence are explained not by the universal principles of the

common law, but by pragmatic considerations.

Neither the acquisition of imperial sovereignty, nor the subsequent enactment of

Crown lands legislation, extinguished native title or legally dispossessed

Aboriginal people from their lands. The Crown exercised its authority to

dispossess Aboriginal people “parcel by parcel”.1 But on what legal basis did the

exercise of this authority rest? It rested on the denial of full respect for native

title, a denial encapsulated in a statement unique to Australian jurisprudence:

The strength of native title is that it is enforceable by the ordinary courts. Its

weakness is that it is not an estate held from the Crown nor is it protected

by the common law as Crown tenures are protected against impairment by

subsequent Crown grant.2

The Crown can extinguish native title by treating land subject to native title as

land owned by the Crown, and dealing with the land on that basis. The Crown

does not have to acquire ownership by purchase or legislative taking. The

property rights of native title holders are extinguished in a way that other

property rights are not. The Crown cannot extinguish the property rights of

others by treating their land as if the Crown were the owner. A doctrine of

extinguishment by Crown grant of only the property rights of native title

holders, “singles out” native title holders and denies them equality before the

law in the enjoyment of their right to own and inherit property. This difference of

treatment is based on the making of an invidious distinction: the treatment of

native title, as the common law expression of rights shaped by Aboriginal

difference, as a lesser form of property and right.

1 Mabo at 69 per Brennan J. 2 Wik at 84 per Brennan CJ (diss) quoted in Fejo at [44] per Gleeson CJ, Gaudron, McHugh

Gummow Hayne and Callinan JJ.


page 226

§7.1 The recognition of native title: English law is modified to become

Australian law

In Australia, Canada and New Zealand, on the assertion of sovereignty, English

law was introduced and displaced indigenous law as a source of law. In

Australia there is only one system of law, and therefore only one system of legal

rights. In the American colonies, two systems of law were recognized:

indigenous law and English (later American) law, under a doctrine of legal

pluralism.

In accordance with colonial constitutional law, English law was “modified” to

the extent necessary to make it appropriate to the conditions of the colony, and

English law, modified to the extent necessary to recognize native title, became

Australian law. The necessary modification was the rejection of the fictional

presumption that the Crown had absolute beneficial ownership of all land

(allodial title). Under Australian law, Crown title to land had to be proven.


page 227

§7.2 Who owns the land - Aboriginal Communities or the Crown?

The Crown, on the mistaken assumption that it owned the land, exercised

authority over the land in two ways: by using land for its own purposes and by

allocating rights over land. Because the Crown assumed prior ownership of the

land, it did not vest ownership in itself by any express or implied executive or

legislative act.

By the assertion of sovereignty, the Crown acquired radical title to colonial

territory, an imperfect form of title to land, as it was devoid of proprietary

content. Additionally, radical title was burdened by native title. If the Crown did

not act to remove the burden of native title, the burden remained.

(a) Comparative jurisprudence: the recognition of Aboriginal ownership and

the acquisition of ownership by the Crown

The comparative jurisprudence set out in Chapter 2 - Comparative jurisprudence:

native title as a property right has emphasised the proprietary aspects of native

title, and established that native title is ownership of land (US and New Zealand

jurisprudence) or a title of exclusive possession akin to ownership and

comparable to other proprietary interests (Canadian jurisprudence). Native title

is a right to the land and to everything on or under the land, a right to control

access, a right to exploit land as an economic resource, and a right equal in value

to an estate in fee simple. Moreover, whatever the exact nature of the property

right of native title was, in New Zealand and Canadian jurisprudence, the Crown

could not validly grant interests in land against native title holders, unless native

title was first acquired. In US jurisprudence, grants of executory interests could

be made prior to the acquisition of native title, but those interests did not affect

native title, did not amount to rights against native title holders, and did not

confer on grantees rights to access or use the land, until native title was otherwise

extinguished by lawful act.

In settler colonies, such as Canada, New Zealand and the American

Colonies/USA, the Crown acquired ownership of land by purchase from native

title owners, and, exceptionally, by confiscation pursuant to act of war or express

legislative authority. What is common to the comparative jurisprudence is that,

without the prior acquisition of native title, where the Crown has granted

interests with respect to land it did not own, those interests did not amount to

rights against native title holders.

(b) Australian jurisprudence: the avoidance of the ownership question

Australian jurisprudence no longer sees native title as a form of ownership, or

true title to land, but as a bundle of separable rights, each of which is

individually extinguishable. Australian jurisprudence has categorised native title

not as a meaningful title to the land, but as a series of fragile property rights.


page 228

Australian jurisprudence does not equate native title to ownership of land, and

therefore does not have to explain Aboriginal loss of ownership. However,

Australian jurisprudence has never asserted that the Crown is the owner of the

land, or has a better relative title to the land than native title holders. In the

absence of such an assertion, and in the absence of acts of purchase or legislative

acquisition of native title, Australian jurisprudence has sought to avoid

application of the common law principle, nemo dat quod non habet (no one can give

what he or she does not have) to Crown grants of interests in land, and avoid an

explanation of how the Crown was able to grant a perfect title against native title

holders, when, as against native title holders, it possessed only an imperfect title,

burdened by native title.

Australian law has also developed principles of extinguishment of native title

that avoid the ownership question, enabling at first extinguishment of native title

by mere Crown use, a proposition since abandoned, and additionally the

extinguishment of native title by the Crown grant of rights. Australian

jurisprudence frames the loss of native title in a way that does not attempt to

justify a loss of ownership. Accordingly, Australian jurisprudence does not

expressly espouse what is implicit in that jurisprudence: that a British subject can

lawfully lose ownership of land by mere Crown use of the land, and that a British

subject can lawfully lose ownership of land when the Crown grants interests in

that land to another.


page 229

§7.3 Full Respect as the standard to determine the recognition and



extinguishment of native title argued that the recognition of native title in

Australian jurisprudence is explained by a principle of full respect for pre-

existing rights. That principle rested on three bases: sovereignty, the introduction

of English law, and the principle of equality before the law.

Sovereignty over the Australian colonies was acquired on the basis that the pre-

existing rights of inhabitants would be fully respected, and the proposition of full

respect is manifested in the description of native title as a burden on radical title,

the sovereign title of the Crown to colonial territory.

On the acquisition of sovereignty, English law, necessarily modified to the

conditions of the Australian colonies, was introduced, and became Australian

law. This law contained a doctrine - the continuity doctrine - which dictated full

respect for pre-existing rights as the common law right of native title. In

accordance with the principles of colonial constitutional law, the introduced law

was necessarily modified to the extent necessary to remove fictions, assumptions

and presumptions inconsistent with the recognition of native title.

Full respect for native title as a “property right” is, according to Mabo, dictated by

a common law principle of equality before the law, as well as the statutory

principle of equality before the law set out in the RDA .


page 230

§7.4 The jurisprudence of pragmatism: The need to legitimate the Crown

exercise of authority creates new principles of destruction of property

rights

Given that the “foundation” of Australian land law was changed as a result of

the recognition of native title, it would follow that many previous executive or

legislative actions, based on this foundational mistake of law, would not have

had the effect they were thought to have. The shape of executive or legislative

actions by the Crown and parliaments would have been very different if native

title had been recognized from sovereignty. The law and practice in other settler

colonies indicates that respect for native title as a legal right requires the

acquisition of native title by Crown purchase for value, whether or not such

transactions amount to truly voluntary agreements or a forced sale, or the taking

of native title by executive or legislative act which is clearly and plainly intended

to achieve this end.

Prior to Mabo, executive and legislative acts in Australia ignored native title, not

due to inadvertence, but on the basis that it did not exist. The Crown proceeded

to use all land in the Australian Colonies as if it were the true owner, to

regularise the squatting of non-Aboriginal subjects on such land, and to grant

interests in such land. Mabo and subsequent jurisprudence held that these Crown

acts were indeed not only lawful under Australian law, but served to extinguish

native title. The Crown’s acts were suggested to be consistent with both the

principle that Australian law fully respected native title and the common law

principle of equality before the law. There was no need to purchase native title

for any consideration, there was no need to seek permission from native title

holders, or to have statutory authority, to enter onto land subject to native title

and use it for Crown purposes, and there was no need to acquire ownership of

land before the Crown proceeded to grant statutory rights of use and occupation

to others.

Chapter 6 - The denial of full respect in the extinguishment of native title demonstrated

that the Australian law of extinguishment of native title did not source itself in

common law principles with respect to the protection or loss of title, ownership

or property rights. A new law was created. Given that every executive or

legislative act prior to the filing of the claim in Mabo 1 ignored the existence of

native title, there could never be an express or implied intention to extinguish

native title. There could only be the exercise of authority.

(a) Extinguishment of native title by mere use

By using land itself, the Crown manifested an intention to deal with land as if the

Crown were the owner of the land. The mere-use principle legitimised every

exercise of Crown authority. The Ward decision in 2002 re-established the

understanding of native title denied by the mere-use principle, namely that

native title was a legal right.


page 231

(b) Extinguishment of native title by Crown grant

Australian law also contained a principle that the property right of native title

was a fragile right and could be lost in a way other property rights could not: by

inconsistent Crown grant.

The Australian law of extinguishment of native title does not accord with the

notion of full respect for traditional rights as common law rights, nor native title

rights as property rights, nor with the notion of full respect as applied in

comparative jurisprudence. Australian law is premised on a pragmatic concern:

that the exercise of Crown authority over land subject to native title is to be

legitimated. The exercise of authority has extinguished native title to the extent

that such authority was exercised. Australian jurisprudence has recast the

relevant question. The relevant question is not whether authority was exercised

in accordance with established legal principle, but whether authority was

exercised in a way that disregarded native title property rights. The extent to

which native title has been disregarded is the extent to which it has been

extinguished. The conceptualisation of native title is a consequence of the shape

native title must have in order to accommodate the law of extinguishment. At its

heart, Australian law is a circular proposition: because the Crown grant of a right

extinguishes native title to the extent that native title is inconsistent with that

right, therefore, native title is a fragile right; and because native title is a fragile

right, therefore it can be extinguished by the Crown grant of right.

The avoidance of the ownership question enables Australian jurisprudence to

avoid answering the question: How can you sell or lease land you do not own?

The answer to this question, implicit in the Australian law of extinguishment of

native title, is that when the Crown sells or leases land it does not own, it

destroys the ownership rights of the true owner, or the person with a better

relative title. This new principle is not consistent with established legal principle.


page 232

§7.5 Native title as a lesser right: the conceptualisation of native title in

accordance with the principles of extinguishment

Chapter 4- The denial of full respect in the conceptualisation of native title argued

native title is conceptualised in a way that denies it the status of ownership, title,

property or even right. In order to contextualise native title as a lesser right,

Australian jurisprudence has adopted various techniques to distinguish it from

other property, and seemingly to distinguish native title from other forms of

common law “right”. The purpose of this conceptualisation is to support the law

of extinguishment of native title.

(a) Native title as a right under Australian law

While power and authority might rest on Crown sovereignty, power and

authority are not common law rights and they are not the source of legal rights.

The Australian law is the source of legal rights. The acts of the Crown conferring

executive or legislative jurisdiction on itself to deal with a matter are not

evidence of an intention to extinguish native title rights with respect to that

matter.

Mabo determined that Australian law “recognizes” native title. This statement

can be taken as the standard judicial expression of right-recognition, in the same

way that Australian law “recognizes” damages for the loss of a commercial

opportunity,3 a distinction between a right and a non-right. However, the

Australian law of native title indicates that there are further distinctions to be

made between institutional common law rights and “fragile” native title rights;

between native “title” and other forms of title, and between the native title

property right and other property rights.

Native title is a right under Australian law in the sense that Australian law

provides a remedy for the infringement of the right, and legislation does not

interfere with the right unless that intention is plainly expressed.4

(b) The subordination doctrines: native title as a lesser common law right

Australian jurisprudence has invoked the notion of an intersection between the

Aboriginal normative system and the Australian legal system to portray

traditional rights, in their expression as the common law right of native title, as

lesser rights.


under Australian law, and affirms the primacy of the common law perspective:

traditional rights incapable of expression in common law terms cannot be

3 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 4 Wilson v Anderson at [61] per Gaudron, Gummow and Hayne JJ: “No doubt it is right to say that

rights and interests are not to be held to have been abrogated by statute, except where the intention

to do so is plainly expressed.”


page 233

recognized as native title. What emerges from the intersection is a common law

right. However, rather than being a process respecting the difference between

Aboriginal and non-Aboriginal perspectives, the intersection subjugates

traditional law/traditional rights/native title, as if this were a description of the

one thing, to the common law by newly created rules of right-recognition: a

doctrine of acceptable custom; the “skeletal principle”; and the “antithetical

rights” principle. The native title right that enters the common law is

compromised in its capacity to compete with other common law rights.

A discussion of the relationship between Australian law and traditional law

contextualises traditional rights (“rights” under traditional law) as “weak”

because they are unenforceable. They are unenforceable because they are not

legal rights, not because of the nature of the Aboriginal connection to country.

The weakness of traditional rights implies nothing about the strength or

weakness of the common law right of native title. Native title can only exist as a

common law expression of right. Native title is not an attempt to understand or

explain the Aboriginal connection to country.

The discussion of the fragility of native title begins with an unresolved discussion

of the relationship between traditional law and Australian law. Because

traditional law is not a true source of law, traditional rights in their common law

expression, are not true rights with respect to property, but fragile rights. Native

title has not been located firmly within the common law conception of right,

despite the fact that native title is a common law construct. Traditional law is not

a direct source of law in Australia under either a doctrine of legal pluralism, or

common law custom. However, Australian jurisprudence has invoked analogies

of common law custom, under which traditional law is a subordinate source of

law, to conceptualise native title as a lesser common law right, and traditional

rights, in their expression as the common law right of native title, as subordinate

to other common law rights.

(c) Native title is labelled a fragile right to distinguish it from other property

rights

The distinction between native title and other common law property rights is

referenced by the idea that native title is not an “institution” of the common law.

Yet native title is the recognition of common law rights shaped by Aboriginal

difference, not rights created by Aboriginal difference. Because the exercise of

Crown authority over land is to be legitimated, the law of extinguishment of

native title must have a particular shape. In order to support that shape, native

title as a “right” must be extinguishable by the exercise of Crown authority.

Priority is to be accorded to the Crown exercise of authority, whether or not that

authority is supported by established legal principles. Weakness or fragility is to

be accorded to native title as a consequence, whether or not native title equates to

ownership or title, property or right.


page 234

§7.6 Native title as a fragile property right

Chapter 6 - The denial of full respect in the extinguishment of native title demonstrated

that Australian law has not developed a jurisprudence which respects native title

as a property right.

(a) The translation of pre-existing rights into property rights

Full respect dictates that if a proprietary intent over land is manifested by

traditional rights, that intent forms the core of the common law right of native

title. Comparative jurisprudence has emphasised native title as ownership of

land and everything on or under the land: the right of exclusive occupation of

land and the exclusive right to exploit land as an economic resource.

Australian jurisprudence has accepted as appropriate the conceptualisation of

native title in terms of the law of property: a right “against the whole world to

possession, occupation, use and enjoyment” of land. The translation of the

traditional right to speak for country into the common law right of exclusive

possession suggests that Australian jurisprudence is indeed both fully respecting

the traditional right, and searching for the most apt common law expression of

that right. However, faithful translation requires not only that the right be

meaningful in its common law expression, but that the proprietary intent, to the

extent it is manifested in an intention to control land, be translated into a true

form of title to land. The right to control land falls within the ownership

spectrum, a form of full-blooded ownership rather than a simple land-use right.

But the translation of traditional rights into common law title has not occurred in

Australian jurisprudence because it ultimately involves resolution of the

ownership question, and therefore an explanation of whether Aboriginal

communities lost ownership of the land, and whether the Crown acquired it.

Instead of being a meaningful form of title, native title is a bundle of

extinguishable land use and land control rights.

(b) Native title as a property right with sui generis content

Sui generis is an appropriate description of difference, but it has no inherent

meaning that one right, when compared to another right, is fragile, although it

identifies the two rights as distinct.

The content of the communal native title right of exclusive possession is not, in

any relevant way, different to the right of exclusive possession passing by a

Crown grant of an estate in fee simple. Both confer an uncatalogable list of rights

to use land, and to control the use of land. The right to control access to land

cannot have an inherently different quality, whether it is exercised for purposes

determined by Aboriginal tradition, or a Western perspective, or whether it is

held communally or individually. Certainly there may be specific use-rights

articulated under native title that would not have entered the legal imagination

of those granting an estate in fee simple, but to the extent both sets of rights

involve land use, the quality of the use-right is indistinguishable from any other


page 235

use-right. In Australian jurisprudence the description of native title as sui generis

does not assist in understanding native title as a proprietary interest, and does

not serve to distinguish native title, as a right of exclusive possession, from

common law conceptions of property as control. The expression sui generis serves

only to indicate that the list of land control and land use rights held under native

title is not the same as the list of rights conveyed by the expression “estate in fee

simple.”

(c) The destruction of property rights: more than a mere side wind required

The legal values of Australian law include not only the abstract notions of justice

and equality, but the presumption against executive or legislative interference

with rights. Australian and comparative jurisprudence hold that native title can

be extinguished on purchase, or by the enactment of legislation which is clearly

and plainly intended to extinguish native title. When legislation expressly

authorises indigenous land to be “taken”, native title is extinguished. Rights are

not to be extinguished by a “side wind”. To hold otherwise would be to destroy

rights “which were not in the contemplation of the Legislature.”5

[Maori title can be extinguished] only by means of a deliberate Act

authorized by law and unambiguously directed towards that end. Unless

there is legislative authority… the Executive cannot, for example,

extinguish customary title by granting the land to someone other than the

customary owners. If it does so the grantee’s interest is taken subject to the

customary title... Customary title does not disappear by a side wind.6

(d) Crown grants and the Crown as source of title

The purchase or legislative acquisition of native title means that the Crown has

acquired absolute ownership of the land (allodial title), out of which it can grant

an estate in fee simple. In the absence of allodial title, the Crown cannot grant a

perfect title to grantees. It cannot grant an interest that is good as against native

title holders. As between grantor and grantee, interests under Crown grant are

regulated by the doctrines of tenure and estates. The doctrines do not dictate that

the Crown in the Australian Colonies has acquired allodial title.

Australian jurisprudence has created the principle of extinguishment of native

title by the grant of an estate in fee simple, without the prior acquisition of

allodial title, and this in turn rests on the proposition that native title is an

inherently fragile right and a principle of priority holding that rights under

Crown grant extinguish fragile rights. The argument that rights under Crown

grant destroy all other property rights, in the absence of some restraining

presumption, is based not on established legal principles of property law or

wider principles of the common law, but on a positive derogation principle

created in Mabo and endorsed in the Native Title Act Case. Chapter 6 - The denial of

5 Forbes v Ecclesiastical Commissioners (1872) LR 15 Eq 51 at 55 6 Faulkner v Tauranga District Council [1996] 1 NZLR 357, 363.


page 236

full respect in the extinguishment of native title demonstrated that there is no such

common law principle. When the Crown grants an estate in land at common law,

it carves that estate out of its allodial title, and no longer has any legal capacity to

grant an estate that overlaps with the estate granted. A presumption against the

derogation from an earlier grant is therefore otiose. Property rights are respected

by a wider common law principle: “an ancient and constant rule of law, that the

king's grants are invalid when they destroy or derogate from rights privileges or

immunities previously vested in another subject”. This principle protects all

vested rights, not just those derived from, or presumed to derive from, Crown

grant. But the creation of the positive derogation principle, coupled with the

distinction between rights under Crown grant and fragile native title rights,

determines the relationship between the two rights in Australian jurisprudence:

rights under Crown grant extinguish native title to the extent of any

inconsistency between the two rights.

Australian jurisprudence is inconsistent with comparative jurisprudence because

comparative jurisprudence contains neither the principle of positive derogation,

nor the conceptualisation of native title as a fragile right. In the comparative

jurisprudence there is no test of inconsistency of rights, there is only the question

of whether the Crown has exercised its authority to create interests in land in

accordance with established legal principle. That question is resolved in the first

instance by asking whether the Crown has acquired ownership of the land. If it

has not, then the burden of native title remains, in the absence of legislation

clearly and plainly removing it. Native title remains a burden on any property

right granted, remains a right against the Crown, and as a consequence, the

Crown cannot grant truly in rem rights, as against native title holders.

(e) An appropriate principle about priorities

The Australian law of extinguishment of native title holds that native title can be

extinguished by Crown grant. To accommodate this proposition, Australian law

title holds that native title has a "weakness", it is "an inherently fragile" right.

Australian jurisprudence therefore adopts a circular proposition: because native

title can be extinguished by Crown grant, it is fragile; because it is fragile, native

title can be extinguished by Crown grant. Priority is to be accorded to rights

under Crown grant.

(f) The presumption of compensation for the loss of native title

In the absence of a clear and plain legislative intention to the contrary, any taking

of property confers on the property holder a right to compensation. Australian

jurisprudence has denied a right to compensation for the loss of native title, by

bare assertion. Such a denial cannot be justified on the basis that native title is not

“property”, and is inconsistent with Australian property jurisprudence and

comparative native title jurisprudence.


page 237

§7.7 Concluding remarks

Since the settlement of the Australian colonies, native title rights have been

ignored. As a result of Mabo and the Native Title Act, these rights are no longer

ignored. They are meaningful legal rights which can be asserted and protected,

and which government must take into account with respect to future dealings in

Crown land. This is the first achievement of Mabo.

A jurisprudence of rights recognition focuses on how native title is to be

protected as a right under Australian law. A jurisprudence of difference, based

on according priority to interests under Crown grants, looks at difference, and

regards difference as an indication of lesser

The Australian conception of native title does not amount to a clear recognition

that at sovereignty, Aboriginal communities owned the land. Native title, a right

derived from a direct connection to land rather than a Crown grant of ownership,

has been seen as sufficiently different to justify the treatment of native title as a

fragile and lesser form of property, compared to other property rights under

Australian law. This is the second achievement of Mabo.

Australian law holds that by ignoring the property rights of Aboriginal

communities and their members, and dealing with land as if it were the owner,

the Crown has extinguished native title. This is hardly a doctrine of full respect

for pre-existing property rights. The effect of the Racial Discrimination Act was to

alter Australian law in this regard, and draw a line between what could be

ignored and what could no longer be ignored. The effect of the Wik Amendments

was to shift this line from 31 October 1975 to 23 December 1996. The future of

native title lies in an era of debilitating litigation hopefully giving way to an era

of meaningful negotiation, in accordance with the law as set out above: the

recognition of native title as a limited property right shaped by the need to

validate the Crown use of land that it never owned.


page 238

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CASES

A v Secretary of State for the Home Department [2003] 2 WLR 564 .....................................49

Abinabina v Enyimadu [1953] AC 207 ....................................................................................119

Adarand Constructors Inc v Pena 515 US 200 (1995) ..............................................................55

Adeyinka Oyekan v Musendiku Adele (1957) 1 WLR 876 ...............................34, 47, 214, 221

Alabama-Coushatta Tribe of Texas v US 2000 WL 1013532 (Fed Cl) ....................................27

Alcock v Cooke (1829) 5 Bing 340.....................................................................................157, 185

Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC) ............................................132

Al-Kateb v Godwin (2004) 219 CLR 562 ..................................................................................172

Amodu Tijani v Secretary,Southern Nigeria [1921] 2 AC 39934, 43, 44, 65, 74, 110, 124, 128,

129, 130, 131, 132, 137, 138, 164, 204, 213

Ashby v White (1703) 2 Ld Raym 938........................................................................................77

Attorney-General (Southern Nigeria) v John Holt & Co (Liverpool) Ltd [1915] AC 599 .130

Attorney-General of Ontario v Mercer (1883) 8 AC 767........................................................153

Attorney-General of Quebec v Attorney-General of Canada [1921] 1 AC 401 .127, 128, 129,

137

Attorney-General of the Northern Territory v Ward [2003] FCAFC 283..............................68

Attorney-General v Brown (1847) 1 Legge 312...........................................................2, 158, 164

Attorney-General v Cain [1906] AC 542..................................................................................128

Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508 ................................213, 214

Attorney-General v Ngati Apa [2003] 3 NZLR 643. 14, 30, 33, 45, 46, 112, 125, 137, 164, 166,

171, 175, 199, 200, 215

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

..........................................................................................................................................101, 103

Barrington's Case (1611) 8 Co Rep 138a ..................................................................................174

Beattie v Canada (2000) 197 FTR 209 .........................................................................................29

Beecher v Wetherby 95 US 517 (1877)................................................................................24, 142

Belfast Corp v OD Cars Ltd [1960] AC 490 .............................................................................173

Bhe and Others v Magistrate, Khayelitsha, 2005 (1) SA 580 .................................................131

Blankard v Galdy (1693) 2 Salk 411............................................................................................39

Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 ..................................173

Brand v Chris Building Society [1957] VR 625........................................................................215

Bristow v Cormican (1878) 3 App Cas 641..............................................................................165

Bropho v Western Australia (1990) 171 CLR 1 .......................................................................172

Calder v Attorney-General of British Columbia [1973] SCR 313 ....15, 22, 29, 35, 44, 71, 100,

108, 113, 124, 128, 167, 174

Calvin’s Case (1609) 7 Co Rep 1 ...............................................................................................153

Campbell v Hall (1774) 1 Cowp 204...........................................................................................44

Canadian Pacific Ltd v Paul [1988] 2 SCR 654..................................................................95, 105

Case 15 – Anonymous (1722) 2 Peere Williams 75, 24 ER 646................................................39

Case of Alton Woods (1600) 1 Co R 40b ..................................................................................157

Case of Churchwardens of St Saviour Southwark (1613) 10 Co Rep 66b ...........................184

Case of Tanistry (1608) 80 ER 516.................................................................................81, 87, 153

Central Control Board v Cannon Brewery Company Ltd [1919] AC 744...................214, 219

Cherokee Nation v Georgia 30 US 1 (1831)...............................................................................17

Chippewas of Sarnia Band v Attorney General of Canada [2001] 1 CNLR 56 (Ont CA) 161,

194, 216

Choate v Trapp 224 US 665 (1912)..............................................................................................19


page 245

Choteau v Molony 16 How 203 (1853) ......................................................................................19

Church v Fenton (1878) 28 Upper Canada Common Pleas 384 .............................................15

City of Vancouver v Vancouver Lumber Company [1911] AC 711 ....................................184

Clark v Smith 38 US 195 (1839).................................................................................................143

Coe v Commonwealth [1979] 53 ALJR 403 ...............................................................................40

Commonwealth v New South Wales (1923) 33 CLR 1 ..........................................................151

Commonwealth v Yarmirr (1999) 101 FCR 171..................................................................80, 85

Commonwealth v Yarmirr (2001) 208 CLR 1... 41, 43, 45, 48, 60, 68, 76, 77, 79, 80, 82, 84, 85,

97, 98, 102, 111, 125, 129, 134, 140, 149, 188

County of Oneida Indian Nation v County of Oneida 414 US 661 (1974) [Oneida I] ..23, 24,

26, 114, 142

County of Oneida v Oneida Indian Nation 470 US 226 (1985) [Oneida II] ....................24, 26

County of Sherrill v Oneida Indian Nation 544 US 1 (2005) ..................................................26

Cramer v US 261 US 219 (1923) ................................................................................................196

Danforth v Wear 22 US (9 Wheat) 673 (1824) ...........................................................................24

De Beer v Graham (1891) 12 NSWLR (E) 144 .........................................................................101

De Rose v South Australia [2002] FCA 1342.............................................................................69

Delgamuukw (1993) 104 DLR (4th) 470 (BCCA).............................. 26, 137, 167, 177, 206, 207

Delgamuukw v British Columbia [1997] 3 SCR 1010 . 16, 17, 22, 26, 30, 33, 36, 44, 70, 94, 99,

100, 102, 105, 106, 107, 108, 109, 110, 111, 113, 115, 117, 156, 175, 177, 195, 206, 207, 217

Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283................................................38

Dietrich v R (1992) 177 CLR 292 .................................................................................................84

Doe d Wilson v Terry (1849) 1 Legge 505................................................................................152

Dugan v Mirror Newspapers (1978) 142 CLR 583 ...................................................................38

Earl of Rutland's Case (1608) 8 Co Rep 55a ....................................................................183, 184

Edwardsen v Morton 369 F Supp 1359 (1973) ........................................................................197

Ex parte Hamilton (1864) 3 SCR (NSW) (L) ............................................................................155

Faulkner v Tauranga District Council [1996] 1 NZLR 357....................................203, 204, 235

Fejo v Northern Territory (1998) 195 CLR 965, 60, 63, 76, 80, 88, 100, 151, 168, 177, 185, 186,

187, 188, 189, 191, 193, 194, 195, 196, 198, 200, 206, 207, 210, 222

Fingleton v R (2005) 216 ALR 474 ..............................................................................................49

Fletcher v Peck 10 US (6 Cranch) 87 (1810)...........................................................17, 18, 24, 142

Forbes v Ecclesiastical Commissioners (1872) LR 15 Eq 51 ..................................173, 174, 235

George v Gamble 2 Overt (Tenn) 170 (1812).............................................................................23

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR

297............................................................................................................................................213

Gerhardy v Brown (1985) 159 CLR 70 .......................................................................................54

Giumelli v Giumelli (1999) 196 CLR 101 .................................................................................215

Griffiths v Northern Territory (No 2) [2006] FCA 1155 ..........................................................64

Griffiths v Northern Territory [2007] FCAFC 178....................................................4, 65, 68, 72

Guardian of the Tribe of Hualpai v Sante Fe Pacific RRCo 314 US 339 (1941) .19, 23, 24, 25,

26, 43, 196

Guerin v R [1984] 2 SCR 335 ............................................... 15, 16, 43, 44, 46, 108, 110, 115, 117

Gumana v Northern Territory (No 2) [2005] FCA 1425 ....................................................4, 174

Gumana v Northern Territory [2005] FCA 50 ......................................................68, 73, 96, 113

Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511............................37

Hamlet of Baker Lake v Minister of Indian Affairs (1979) 107 DLR (3d) 513....108, 193, 195,

196, 205, 206

Hanasiki v OJ Symes (Unreported, High Court of the Solomon Islands, Charles J 17

August 1951) ............................................................................................................................79

Hayes v Northern Territory [1999] FCA 1248 ..................................................................73, 170

Holden v Joy 84 US 211 (1872)....................................................................................................18


page 246

Hughes v Governor etc Hudson's Bay (1998) 55 BCLR (3d) 377 (BCSC)............................137

Hull v Nottinghan (1876) 33 LTR 697 ........................................................................................80

Hunt v Halcan Log Services Ltd [1987] 4 CNLR 63...............................................................208

Idewu Inasa v Oshodi [1934] AC 99.............................................................................81, 82, 204

In Re Southern Rhodesia [1919] AC 211......................................................43, 44, 164, 165, 169

In the matter of the Islington Market Bill (1835) 3 Cl & F 513 ..............................................185

Incorporated Society v Richards (1841) 1 Dru & War 258 ....................................................155

Inupiat Community v United States 680 F 2d 122 (1982)......................................................197

JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 ....................................................................155

Jango v Northern Territory [2007] FCAFC 101...................................................................68, 96

Johnson v McIntosh 21 US 543 (1823) ..... 17, 18, 19, 40, 112, 114, 115, 116, 118, 119, 142, 143,

196

Kanak v National Native Title Tribunal (1995) 61 FCR 103......................................................4

Kansas Indians 5 US (Wall) 737 (1867) ......................................................................................23

Kielly v Carson (1842) 4 Moo PC 63...........................................................................................44

Kwamina Kuma v Kofi Kuma (1938) 5 WAC 4 ......................................................................131

Lane v Pueblo of Santa Rosa 249 US 110 (1919) .....................................................................196

Leavenworth, Lawrence, and Galveston Railroad Company v United States 92 US 733

(1875) .................................................................................................................................19, 142

Lee v Glover 8 NYR 189 (SCNY, 1828) ......................................................................................19

Leech Lake Band of Chippewa Indians v Herbst 334 F Supp 1001 (1971)............................28

Lehman v McBride 15 Ohio St. 573 (1863).................................................................................54

Leiriao v Val-Bélair (Town) [1991] 3 SCR 349.........................................................................174

Lipan Apache Tribe v United States 180 Ct Cl 487 (1967).........................................24, 27, 174

Livingstone v Rawyards Coal Co (1880) 5 App. Cas. 25 .......................................................215

Lord Advocate v Clyde Navigation Trs (1891) 19 R 174 .......................................................159

Lord Advocate v Wemyss (1899) 2 F 1 ....................................................................................159

Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982)....................................101

Lyng v Northwest Indian Cemetery Protective Association 485 US 439 (1988) ..................17

Mabo v Queensland (1989) 166 CLR 186.....................................2, 8, 61, 62, 111, 209, 210, 230

Mabo v Queensland (No 2) (1992) 175 CLR 1.. 3, 4, 8, 12, 33, 34, 35, 36, 38, 41, 42, 43, 44, 45,

46, 47, 49, 50, 51, 52, 53, 54, 55, 60, 61, 62, 65, 71, 74, 80, 81, 82, 83, 84, 87, 95, 97, 98, 110,

111, 113, 118, 119, 121, 124, 125, 126, 128, 129, 132, 133, 134, 135, 136, 138, 140, 141, 148,

149, 155, 158, 162, 163, 164, 166, 167, 168, 174, 175, 176, 178, 179, 180, 181, 184, 187, 188,

189, 190, 192, 194, 209, 212, 214, 215, 218, 219, 220, 221, 222, 224

Maciantonio v Queen (1994) 183 CLR 58...................................................................................49

Magna Carta 1215, 17 John c.29 ..........................................................................................79, 213

Marsh v Brooks 49 US (8 How) 223 (1850) ................................................................................19

Marsh v Brooks 55 US 513 (1852) .............................................................................................197

Marshall v Clark 1 Kentucky 77 (KCA 1791) ............................................................................24

Mason v Tritton (1994) 34 NSWLR 572......................................................................................61

Matadeen v Pointu [1999] 1 AC 98.............................................................................................49

Mayor of Exeter v Warren (1844) 5 QB 773.............................................................................185

McRitchie v Taranaki Fish and Game Council [1999] 2 NZLR 139 .......................................14

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 442 ...4, 47,

48, 66, 76, 82, 83, 86, 88, 89, 111, 124, 188

Mercer v Denne [1905] 2 Ch 538 ...............................................................................................119

Michigan Land & Lumber Co v Rust 168 US 589 (1897) .......................................................197

Milirrpum v Nabalco (1971) 17 FLR 141................................................................................2, 42

Minister of State for the Army v Dalziel (1944) 68 CLR 261 ...........................................98, 213

Minnesota v Mille Lacs Band of Chippewa Indians 526 US 172 (1999) ................................28

Mitchel v US 34 US 711 (1835) ..........................................................................18, 19, 24, 26, 142


page 247

Mitchell v MNR [2001] 1 SCR 911 ...................................................................... 28, 35, 36, 43, 86

Mitchell v Scales (1907) 5 CLR 405.............................................................................................38

Montana v United States 450 US 544 (1981) .............................................................................17

Mostyn v Fabrigas (1774) 1 Cowp 161 (KB)........................................................................38, 44

Mounsey v Ismay (1863) 1 Hurl & Colt 729..............................................................................80

National Provincial Bank Ltd v Ainsworth [1965] AC 1175...................................................98

National Trustees Executors and Agency Co v FCT (1954) 91 CLR 540...............................98

Native Title Act 1993 (Cwth) ..83, 95, 96, 111, 151, 167, 173, 175, 176, 178, 189, 191, 192, 218,

223, 235

Neowarra v Western Australia [2003] FCA 1402 ...............................................................69, 72

New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR

337........................................................................................................................................2, 162

New Windsor Corporation v Mellor [1975] Ch 380.........................................................81, 186

New York Indians 5 US (Wall) 761 (1867).................................................................................23

New Zealand Maori Council v Attorney General [1987] 1 NZLR 641..................................12

New Zealand Maori Council v Attorney General [1994] 1 NZLR 513 (PC) ...................12, 36

Nireaha Tamaki v Baker [1901] AC 561 .................. 13, 14, 21, 22, 112, 132, 138, 166, 203, 215

Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim

Group [2005] FCAFC 135..............................................................................................4, 62, 83

Oshodi v Balogun [1936] 2 All ER 1632...................................................................................204

Osoyoos Indian Band v Oliver (1999) 172 DLR (4th) (BCCA) 589.......................................137

Osoyoos Indian Band v. Oliver (Town) [2001] 3 SCR 746 ............................................108, 173

Papua and New Guinea v Daera Guba (1973) 130 CLR 353......................... 114, 115, 132, 157

Patta Warumungu People v Northern Territory [2007] FCA 1386................................64, 107

Penn v Lord Baltimore (1750) 1 Ves Sen 444 ............................................................................40

Potter v Minahan (1908) 7 CLR 277 .........................................................................................172

Quan Yick v Hinds (1905) 2 CLR 345 ........................................................................................38

R v Adams [1996] 3 SCR 101.......................................................................................................28

R v Alphonse (1993) 80 BCLR (2d) 17 (CA) ............................................................................208

R v Badger [1996] 1 SCR 771 .....................................................................................................208

R v Ballard (1829) <http://www.law.mq.edu.au/scnsw> ........................................................42

R v Bernard 2003 NBCA 55...............................................................................................170, 175

R v Bonjon [1841] (1998) 3 AILR 417..........................................................................................42

R v Gladstone [1996] 2 SCR 723................................................................................................207

R v Marshall (2003) 218 NSR (2d) 78 .........................................................................................91

R v Marshall; R v Bernard [2005] 2 SCR 220 ..................... 65, 91, 93, 94, 99, 100, 102, 105, 106

R v Mercure (1988) 48 DLR (4th) 1 ...........................................................................................172

R v Murrell (1836) 1 Legge 72 (SCNSW) ...................................................................................42

R v Oxfordshire County Council: ex parte Sunningwell Parish Council [2000] AC 335...47,

120

R v Sappier; R v Gray [2006] 2 SCR 686.....................................................................................29

R v Sioui [1990] 1 SCR 1025.........................................................................................................16

R v Sparrow [1990] 1 SCR 1075.........................................................................................195, 207

R v Sundown [1999] 1 SCR 393...................................................................................................70

R v Symonds (1847) [1840-1932] NZPCC 387 21, 36, 43, 50, 112, 115, 116, 117, 118, 137, 157,

160, 161, 166, 194

R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 ...............................67, 98

R v Van der Peet [1996] 2 SCR 507 ............... 16, 28, 29, 36, 56, 77, 105, 106, 108, 110, 117, 217

R v We-War (1842) Quarter Sessions, WA

<http://www.austlii.edu.au/au/other/NSWSupC/1842/1.html> ........................................42

R v White and Bob (1964) 50 DLR (2d) 613...............................................................................35

R v Williams [1995] 2 CNLR 229 ................................................................................................42


page 248

Radaich v Smith (1959) 101 CLR 209..........................................................................................78

Randwick Corporation v Rutledge (1959) 102 CLR 54..............................................................2

Re Ninety Mile Beach [1963] NZLR 461 ............................................................................14, 101

Re Ninety Mile Beach, (1957) 85 Northern MB 126..................................................................79

Re Nisbet and Potts' Contract [1905] 1 Ch 391........................................................................155

Re Nyungah People (1996) 132 FCR 54 .......................................................................................4

Re The Lundon and Whitaker Claims Act 1871 (1872) 2 NZCA 41.......................................14

Rhode Island v Massachusetts 37 US 657 (1838) ......................................................................35

Sakariyawo Oshodi v Moriamo Dakolo [1930] AC 667.................................................195, 204

Sampi v Western Australia [2005] FCA 777..................................................................62, 66, 67

Sandhurst Trustees Ltd v 72 Seventh Street Nominees (1998) 45 NSWLR 556..........100, 153

Scott v Nixon (1843) 3 Dru & War 388.....................................................................................155

Seminole Nation v United States 316 US 286 (1942) ................................................................36

Shetland Salmon Farmers Assoc v Clyde Navigation Trs 1991 SLT 166 ............................159

Skeetchestn Indian Band and Secwepemc Aboriginal Nation v Registrar of Land Titles,

Kamloops [2000] BCCA 525 .................................................................................................206

Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of

Community Services and Health (1990) 95 ALR 87 ............................................................95

Smith v Brown (1702-05) 2 Salk 666 ...........................................................................................40

Smith v Lerwick Harbour Trustees (1903) 5 F 680, 10 SLT 742 ....................................159, 160

Spooner Oils Ltd v Turner Valley Gas Conservation Board [1933] SCR 629 .....................193

St Catherine's Milling & Lumber Co v Queen (1888) 14 AC 46 15, 30, 43, 108, 115, 127, 128,

129, 130, 132, 137, 206

St Catherine's Milling and Lumber Co v Queen (1887) 13 SCR 577 ..............................15, 128

St Mary's Indian Band v Cranbrook (City) [1997] 2 SCR 657 ...............................................107

Stead v Carey (1845) 1 CB 496...................................................................................180, 181, 182

Stoney Creek Indian Band v Alcan Aluminum [1999] 1 CNLR 192 ....................................216

Strother v Lucas 37 US 410 (1838) ............................................................................................197

Sunmonu v Disu Raphael [1927] AC 881 ............................................................47, 74, 131, 204

Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321 (CA) ...............................162, 165

Te Runanganui o te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 .21, 137

Te Teira Te Paea v Te Roera Tareha [1902] AC 56 .................................................195, 200, 201

Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 .........................................14, 29, 33

Tee Hit Ton Indians v United States 348 US 272 (1955) ........................19, 20, 26, 27, 196, 197

The Proclamations Case (1610) 12 Co. R 74 (KB)....................................................................173

Tyson v Smith (1838) 9 Ad and E 406 ........................................................................................81

United States v Atlantic Richfield Co 435 F Supp 1009 (D Alaska 1977) ....................196, 197

United States v Cook 86 US 591 (1873) ....................................................................................143

United States v Gemmill 535 F 2d 1145 (1976)..........................................................................25

United States v Joseph 94 US 614 (1876)..................................................................................114

United States v Klamath and Moadoc Tribes of Indians 304 US 119 (1938).........................19

United States v Loughrey 172 US 206 (1898) ............................................................................77

United States v Paine Lumber Company 206 US 467 (1907) ..................................................98

United States v Percheman 32 US 51 (1833)..............................................................................33

United States v Shoshone Tribe 304 US 111 (1938) ............................................................19, 26

United States v Tillamooks 392 US 40 (1946)..........................................19, 20, 24, 27, 142, 196

United States v Wheeler 435 US 313, 326 (1978).......................................................................17

United States v Winans 198 US 371 (1905) ................................................................................20

Van Ness v Pacard 2 Pet 137 (1829)............................................................................................40

Vanzant v Waddel 10 Tenn (2 Yet) 260 (1829) ..........................................................................54

Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 .........................172

Walker v New South Wales (1994) 182 CLR 45........................................................................12


page 249

Walsingham’s Case (1573) 2 Plowd 547 ..................................................................................151

Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory [2000] FCA 923.4,

68, 73, 113

Washington v Fishing Vessel Assn 443 US 658 (1979) ............................................................79

Western Australia v Commonwealth (1995) 183 CLR 375 [Native Title Act Case] 33, 34, 53,

95, 151, 166, 167, 175, 176, 178, 179, 181, 182, 183, 189, 191, 192, 193, 210, 218

Western Australia v Ward (2000) 99 FCR 316 ....................................................................63, 96

Western Australia v Ward (2002) 213 CLR 1 . 4, 5, 12, 25, 47, 49, 56, 57, 63, 66, 67, 69, 70, 72,

76, 77, 82, 84, 86, 87, 93, 94, 95, 99, 102, 111, 168, 169, 170, 173, 176, 177, 179, 187, 189,

190, 191, 192, 209, 210, 212, 216, 222

Whata-Wickliffe v Treaty of Waitangi Fisheries Commission CA73/04 [30 June 2004]

(NZCA) .....................................................................................................................................29

Wheeler v Baldwin (1934) 52 CLR 609 ............................................................................155, 156

Wi Parata v The Bishop of Wellington [1877] 3 NZ Jur 72 ...............................14, 30, 160, 199

Wik Peoples v Queensland (1994) 49 FCR 1 .............................................................................96

Wik v Queensland (1996) 187 CLR 1 .. 5, 43, 45, 48, 62, 63, 74, 96, 97, 105, 111, 124, 134, 135,

136, 138, 148, 149, 150, 151, 152, 158, 167, 168, 169, 175, 176, 177, 178, 179, 181, 187, 188,

189, 191, 193, 194, 219, 222, 225

Williams v City of Chicago 242 US 434 (1917)..........................................................................21

Williams v Lee 358 US 217 (1959)...............................................................................................17

Williams v Morley (1824) 2 B & C 910 .....................................................................................170

Wilson v Anderson (2002) 213 CLR 401 ......................................................................................2

Wily v St George Partnership Banking (1999) 84 FCR 423 .....................................................95

Wongatha People v Western Australia (No 9) [2007] FCA 31................................................85

Worcester v Georgia 31 US (6 Pet) 515 (1832).... 17, 18, 26, 30, 40, 42, 114, 115, 116, 142, 143,

163

Yanner v Eaton (1999) 201 CLR 351 .....................................................................97, 98, 170, 188

Yarmirr v Northern Territory (1998) 82 FCR 533...............................................................79, 85


page 250

STATUTES

Aboriginal Land Rights (Northern Territory) Act 1976 (Cwth) .......................................69, 74

Alaska Native Claims Settlement Act 1971, 43 USC §§ 1601-1629a.................25, 27, 197, 217

Australian Courts Act 1828 (UK), 9 Geo IV c83........................................................................38

Commonwealth of Australia Constitution Act 1900 (UK)........................................52, 98, 209

Constitution Act 1867 (UK) .................................................................................................22, 127

Constitution Act 1982 (Can)..........................................................................................22, 26, 217

Constitutional Act of 1791 (UK), 31 George III c.31 .................................................................38

Crown Lands Alienation Act of 1861 (NSW)..........................................................................193

English Laws Act 1858 (NZ) .......................................................................................................38

General Allotment Act 1887 (US) (Dawes Act) ..................................................................20, 21

Gifts for Churches Act 1811 (UK), 51 Geo 3 c.115 ..................................................................174

Indian Act 1876 (Can) ..................................................................................................................21

Interpretation Act 1984 (WA)......................................................................................................38

Land Title Act, RSBC 1996, c.250..............................................................................................206

Land Titles of Validation Act 1994 (Vic)......................................................................................4

Lands Acquisition Act 1906 (Cwth). ........................................................................................173

Maine Indian Claims Settlement Act 1980, 25 USC §§ 1721-1735 ........................................217

Maori Fisheries Act 1989 (NZ) ....................................................................................................29

Maori Land Claims Adjustment and Laws Amendment Act 1904 (NZ)............................201

Minerals (Acquisition) Ordinance (NT) ..................................................................................170

Mining Act 1904 (WA) ...............................................................................................................170

Mining Act 1906 (NSW).............................................................................................................172

Mohaka and Waikare District Act 1870 (NZ) .........................................................................200

Moore-Street Improvement Act 1890 (NSW)..........................................................................193

Native Exemption Ordinance 1844 (NZ)...................................................................................42

Native Land Act 1909 (NZ) .................................................................................................21, 215

Native Land Court Act 1886 (NZ)....................................................................................201, 203

Native Lands Act 1865 (NZ) .......................................................................................................20

Native Title (New South Wales) Act 1994 (NSW)......................................................................4

Native Title (Queensland) Act 1993 (Qld)...................................................................................4

Native Title (South Australia) Act 1994 (SA)..............................................................................4

Native Title (Tasmania) Act 1994 (Tas) .......................................................................................4

Native Title Act 1993 (Cwth) 3, 4, 5, 33, 34, 46, 47, 53, 60, 95, 96, 111, 151, 167, 173, 175, 176,

178, 189, 191, 192, 218, 223, 235

Native Title Act 1994 (ACT)..........................................................................................................4

Native Title Amendment Act 1998 (Cwth) .................................................................5, 173, 237

New South Wales Act 1823 (UK), 4 Geo IV c.96.......................................................................43

New South Wales Court Act 1787 (UK), 27 Geo III c.2............................................................43

New Zealand Constitution Act 1852 (UK) ................................................................................82

New Zealand Settlements Act 1863 (NZ)........................................................................200, 203

Ngai Tahu Claims Settlement Act 1996 (NZ) ...........................................................................25

Parramatta Friendly Societies' Hall Site Vesting Act 1904 (NSW).......................................193

Pouakanui Claims Settlement Act 2000 (NZ). ..........................................................................25

Property Law Act 1974 (Qld) ....................................................................................................153

Public Lands Acquisition Ordinance 1923 (Nigeria) .............................................................204

Queensland Coast Islands Declaratory Act 1985 (Qld) .......................2, 51, 166, 175, 210, 218

Quia Emptores 1290 (UK)..........................................................................................................151

Racial Discrimination Act 1975 (Cwth) 2, 8, 49, 51, 52, 53, 55, 56, 57, 166, 175, 194, 209, 210,

212, 218, 220, 222, 229


page 251

Resident Magistrates Act 1867 (NZ) ..........................................................................................42

Royal Proclamation of 7 October 1763, RSC 1985, App II, No 1 ..... 15, 26, 113, 115, 117, 128,

129, 161, 217

Sources of Laws Act 1981 (NT)...................................................................................................38

State Land (Titles and Traditional Usage) Act 1993 ................................................................53

Statute of Tenures 1660 (UK) ....................................................................................................151

Statute of Wills 1540 (UK) .........................................................................................................151

Supreme Court Ordinance 1923 (Laws of Nigeria) .................................................................82

Tauranga District Lands Act 1867 (NZ) ..................................................................................203

Te Ture Whenua Maori Act 1993 (NZ)............................................................................200, 215

Territorial Sea Contiguous Zone and Exclusive Economic Zone Act 1977 (NZ)...............171

Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ...............................4

Trade and Intercourse Act 1790, 1 Stat 137 [Nonintercourse Act]................. 18, 113, 114, 217

Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (NZ)..........................................29

Treaty of Waitangi Act 1975 (NZ) .................................................... 12, 13, 25, 39, 113, 116, 199

US Constitution ......................................................................................................................19, 27

Validation (Native Title) Act 1994 (NT) ......................................................................................4

Waikato Raupatu Claims Settlement Act 1995 (NZ) ...............................................................25

Water Act 1992 (NT) ..................................................................................................................170