Native Title Report 2000: Chapter 2: Definition and extinguishment of native title by the common law

Chapter 2: Definition and extinguishment of native title by the common law

This year the High Court will decide fundamental issues about the nature of native title and the extent to which it is protected by the common law. In hearing the appeal of the Miriuwung, Gajerrong and Balangarra peoples from the decision of the Full Federal Court in Western Australia v Ward (1) the court will be called upon to arbitrate an old dispute that has never been settled; that between Indigenous and non-Indigenous people as competing claimants for land. In this arbitration process the survival of non-Indigenous interests is assured. It is the Indigenous interests that are under threat.

The construction of native title at common law is important because it determines whether Indigenous interests in land are capable of withstanding the grant of non-Indigenous interests created throughout the history of colonisation in Australia. The survival of Indigenous interests in land is central to the survival of Indigenous culture throughout Australia. If native title is constructed as a weak title at common law it will be extinguished by the creation of non-Indigenous interests and the culture that is sustained by that land will end. If native title is constructed as a strong title then it will survive the creation of these interests and Aboriginal culture will endure.

The construction of native title at common law will in turn affect the level of protection provided to native title in the NTA. This is because the common law construction of native title is imported into the statutory definition of native title at s223, which provides;

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal people 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 recognized by the common law of Australia.

The NTA offers little further protection than that provided by the common law to Aboriginal people whose interests have been affected, either impaired or extinguished by the statutory or executive creation of non-Indigenous interests prior to 1975. Indeed, the NTA validates post-1975 extinguishment that would otherwise have been invalid as a result of the operation of the RDA. However, the NTA does extend the common law protection of native title in relation to one exempted category; where native title claims are made over vacant Crown land and the claimants are in occupation of the land, prior extinguishment will be disregarded. (2)

Issues in the Miriuwung Gajerrong case

The main issue in the case is whether native title should be characterised by the common law as a bundle of rights in relation to land and waters or or or or or as an interest in that land and those waters. The majority of the Full Federal Court, their Honours Justices Beaumont and von Doussa, characterized native title as a bundle of rights to carry out activities and traditional social and cultural practices. Justice North, dissenting, agreed with the trial judge, Justice Lee, that native title was a right to the land and the social and cultural practices were pendant rights arising from the underlying right to the land.

The outcome of this issue will determine the level of protection extended to native title by the law and whether it is strong enough to survive the grant of various non-Indigenous interests in land. Where native title is constructed as a bundle of rights in relation to land it is extinguished, right by right, whenever their exercise is inconsistent with the enjoyment of non-Indigenous rights. Where native title is constructed as an interest in land it is extinguished as a result of a deeper inconsistency between this underlying right to the land and the enjoyment of non-Indigenous rights.

Native title as a bundle of rights

• Definition. Native title is a bundle of distinct severable and enumerable rights and interests that can be exercised on the land. (3) There is no overriding principle which unifies these rights and interests into a broader legal construct. (4) The common law applies to protect only the physical enjoyment of rights and interests that are of a kind that can be exercised on the land, and does not protect purely religious or spiritual relationships with land. (5) The right to maintain protect and prevent the misuse of cultural knowledge of the common law holders associated with the determination area is a personal right and not a right which can be the subject of a native title determination .(6)

• Extinguishment. Extinguishment may be caused by (i) laws or acts that indicate a 'clear and plain intention' to extinguish native title, (ii) laws or acts which create rights in third parties in respect of a parcel of land which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title. (7) Where extinguishment is caused by laws or acts creating rights in third parties, native title is extinguished "to the extent of the inconsistency, irrespective of the actual intention of the executive and whether or not the legislature or the executive officer adverted to the existence of native title". (8)

• Partial extinguishment. Where the creation of rights in third parties is inconsistent with the exercise of only some native title rights then only those native title rights will be extinguished permanently. (9) A bundle of rights that was so extensive as to be in the nature of a proprietary interest may by partial extinguishments be so reduced that the rights which remain no longer have the character of a proprietary interest. (10) A succession of different grants may have a cumulative effect such that native title rights and interests which survive one grant that brought about partial extinguishment may later be extinguished by another grant. (11)

Native title as a right to land

• Definition. Justices North and Lee both describe native title as a right to land based on the traditional connection of Aboriginal people to the land. The right to undertake activities on the land, such as hunting and fishing, derives from this underlying right to the land. (12)

• Extinguishment. Native title is extinguished by legislative or executive acts where the Crown has displayed a clear and plain intention to do so. (13) A clear and plain intention to extinguish native title is an intention to permanently and totally abrogate the right of Aboriginal people to the land itself. (14) Native title will be extinguished where there is a 'fundamental, total or absolute' inconsistency between the rights or interests created by a legislative or executive act and the underlying right of Aboriginal people to the land, reflecting the intention of the Crown to remove all connection of the Aboriginal people from the land in question. (15)

• Suspension. Where there is an inconsistency between the rights and interests created by a legislative or executive act and the exercise of rights derived from the holding of native title, such inconsistency not constituting an intention to extinguish native title, the rights created by the legislative or executive act will take priority over the exercise of native title rights. Inconsistent native title rights will be held in abeyance in order to allow the full enjoyment of rights and interests created by the law but will not be extinguished. (16) Native title holders can resume exercising native title rights when the inconsistent rights created by the law have expired.

Impact of developments in the common law upon the human rights of Aboriginal people

From a human rights perspective the preferred construction of native title is one which ensures that Indigenous law and culture are protected from extinguishment. The following human rights standards support this construction of native title

• The right to equality
• The right to protection of property
• The right to enjoyment of culture
• The right to self determination
• The principle of freedom of religion

The right to equality

The right to racial equality is recognised in every major international human rights treaty, convention and declaration. (17) These principles govern the assessment of the level of protection required with regard to all substantive human rights, including the rights to protection of property and the rights of minority populations and Indigenous peoples to maintain and develop their cultures.

1. Equality requires the protection of a distinct cultural identity

The meaning of equality has been informed by the recognition of how the operation of the formal standard of equality affected minority groups and Indigenous peoples. The standard of 'formal equality' required merely that all people be subject to the same laws and protections, regardless of any underlying inequality or difference in their economic and cultural circumstances. Yet it was early accepted that minority groups and Indigenous peoples have a right to maintain their distinctive characteristics. As was stated in the first session of the United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities in 1947:

Protection of minorities is the protection of non-dominant groups which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics they possess and which distinguish them from the majority of the population .(18)

This was a recognition that the strict application of formal rules of equality would not protect the human right of minority groups to maintain their distinctiveness, but in fact force them to 'integrate' or 'assimilate' into the majority culture. Consequently, it was recognised that where there are fundamental differences between a majority population and minority groups or Indigenous peoples, mere equal treatment before the law (through the application of general laws to their particular circumstances) will result in a failure to protect their fundamental human rights. In order that the human rights of Indigenous peoples be equally protected, the mechanisms to achieve that protection must encompass differential treatment which takes account of our cultural and historical specificity. This is the principle of substantive equality.

What is required by 'differential treatment' was discussed by the Permanent Court of International Justice in Minority Schools in Albania, when the Court stated that protection of a minority group required:

To ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics. (19)

This formulation recognises that to protect a right to enjoy culture necessitates a substantive equality approach. It is explicitly stated by the Court that equality requires protection of the special circumstances that enable the continuation of the culture:

...there would be no true equality between majority and minority if the latter were deprived of its institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority. (20)

The principle of substantive equality and its corresponding protection of difference, is a requirement of the basic equality standard, not just an additional 'special measure' tacked onto formal equality - as Dr Sarah Pritchard has stated:

... an understanding of equality that is elaborated in international practice regards measures to protect the distinct identities of Indigenous Australians as required by the concept of equality rather than as an exception to it. (21)

The Committee on the Elimination of Racial Discrimination (the CERD Committee) has confirmed that in their application to Indigenous peoples, the Convention requires States to comply with a substantive equality standard. General Recommendation XXIII on Indigenous Peoples requires States inter alia to:

(a) recognise and respect indigenous distinct culture, history and language and way of life as an enrichment of the State's cultural identity and to promote its preservation;

(b) ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity;

(c) provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;

(d) ensure that no decisions directly relating to the rights and interests of indigenous peoples are taken without their informed consent;

(e) ensure that indigenous communities can exercise their rights to practise and revitalise their cultural traditions and customs, to preserve and practise their languages; and

(f) recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands and territories and resources and, where they have been deprived of their lands and territories traditionally used or otherwise inhabited or used without their free and informed consent, to take steps to return these land and territories. Only where this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories. (22)

It is now also accepted by the Australian Government that substantive equality is the standard now required at international law. The Government's arguments before the CERD Committee conceded that the standard of equality has broadened under international law to include 'substantive equality'. (23) This is reflected also in the Attorney General's submission to the Parliamentary Joint Committee on Native Title Inquiry into the CERD decision in February 2000, which stated:

At the time the CERD Convention was drafted, equality was conceptualised as sameness or identical treatment. Under this approach any distinctions in treatment are considered discriminatory.

However, in international law, as recognition of the existence of legitimate differences between racial groups has developed, there has been a broadening of the interpretation of the equal treatment obligation to approve the taking into account of 'genuine difference'. This understanding of what differences in treatment are permissible has been termed 'substantive equality'. It allows like treatment of things that are alike and appropriately different treatment of things that are different. (24)

International human rights standards require that cultural differences are not only taken into account in providing equality between racial groups but that those differences are positively protected.

The most recent guidance in relation to the international law standards of equality that apply to the recognition of Indigenous peoples' lands comes from the CERD Committee in its consideration of the amendments to the NTA and their consistency with the requirements of their Convention.

The Committee's finding, that many of the amendments to the NTA discriminate against Indigenous people, is based on an understanding of equality that the unique relationship between land and the culture of Indigenous people be protected.

The Committee recognises further that the land rights of indigenous peoples are unique and encompass a traditional and cultural identification of the indigenous people with their land that has generally been recognised. (25)

A number of informative and educative United Nations reports on the relationship of Indigenous people to their land have been submitted through the Sub-Commission on the Prevention of Discrimination and Protection of Minorities. While these reports are not a source of international law they inform and influence the standards which are emerging through the UN system. The one point on which they are all consistent is their recognition of the unique and fundamental relationship that Indigenous people have with their land. Mrs Erica-Irene Daes tabled her second progress report of the study entitled Indigenous people and their relationship to land in June 1999. The final report has been tabled at a recent meeting of the Working Group on Indigenous Populations. Mrs Daes notes;

Throughout the life of the Working Group, indigenous peoples have emphasised the fundamental issue of their relationship to their homelands. They have done so in the context of the urgent need for understanding by non-Indigenous societies of the spiritual, social, cultural, economic and political significance to indigenous societies of their land, territories and resources for their continued survival and vitality. Indigenous people have explained that, because of the profound relationship that indigenous peoples have to their lands, territories and resources, there is a need for a different conceptual framework to understand this relationship and a need for recognition of the cultural differences that exist. Indigenous peoples have urged the world community to attach positive value to this distinct relationship. (26)

The report of Mrs Daes follows from and is consistent with the conclusions proposals and recommendations of Special Rapporteur Jose R. Martinez Cobo, in Study of the Problem of Discrimination Against Indigenous Populations 1986. Mr Martinez Cobo states:

It is essential to know and understand the deeply spiritual special relationship between indigenous peoples and their land as basic to their existence as such and to all their beliefs, customs, traditions and culture. (27)

The unique and fundamental relationship that Indigenous people have with their land is confirmed again in the Final Report by Miguel Alfonso Martinez in his Study on treaties, agreements and other constructive arrangements between States and indigenous populations. (28) The Final Report recommends;

The first general conclusion concerns the issue of recognition of indigenous peoples' right to their land and their resources, and to continue engaging, unmolested, in their traditional economic activities on those lands. This is the paramount problem to be addressed in any effort to establish a more solid, equitable and durable relationship between the indigenous and non-indigenous sectors in multi-national societies. Owing to their special relationship, spiritual and material, with their lands, the Special Rapporteur believes that very little or no progress can be made in this regard without tackling, solving and redressing - in a way acceptable to the indigenous peoples concerned - the question of their uninterrupted dispossession of this unique resource, vital to their lives and survival. (29)

The underlying message of these reports is that unless the dispossession of Indigenous people from their land is addressed then Indigenous people will continue to be disadvantaged.

2. Substantive equality requires the effect of past discrimination be addressed

The Committee's finding, that many of the amendments discriminate against Indigenous people, is based on an understanding of equality that requires that the history of dispossession of Indigenous people be acknowledged and addressed.

The Committee recognises that within the broad range of discriminatory practices that have long been directed against Australia's Aboriginal and Torres Strait Islander people, the effects of Australia's racially discriminatory land practices have endured as an acute impairment of the rights of Australia's indigenous communities. (30)

When the right to enjoyment of culture is governed by a principle of substantive equality, the protection of that right may also require assessing the right in the light of past discriminatory treatment and redressing the effects of that past discriminatory treatment. The CERD Committee recommended that States:

... ensure that Indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs, to preserve and to practice their languages. (31) [emphasis added]

Further, in a case regarding the impact of non-Indigenous activities on the Indigenous economic activities which sustain the way of life and culture of the minority group the Human Rights Committee stated:

In considering whether the economic activities of the minority group are being interfered with in such a way as to threaten the way of life and culture of the community, the Committee will take into account historical inequities in treatment. (32)

These commentaries reveal that partial destruction of Indigenous culture because of past discriminatory treatment should not justify further destruction of that culture. In fact the impact of past dispossession on the capacity of current Indigenous communities to sustain their culture must be taken into account when considering what is required to ensure equal protection for the future economic sustainability of that culture.

3. The extinguishment of Indigenous interests in land for the benefit of non-Indigenous interests is discriminatory

The CERD Committee's observations in relation to the amendments to the NTA also offer some guidance on the international law standard of discrimination and its application to Indigenous relationships to land. The amendments to the NTA that the CERD Committee found discriminatory were those amendments which preferred non-Indigenous interests over Indigenous interests.

While the original Native Title Act was delicately balanced between the rights of indigenous and non-indigenous titleholders, the amended Act appears to create legal certainty for government and third parties at the expense of indigenous title. (33)

The Committee notes in particular, four specific provisions that discriminate against indigenous title-holders under the newly amended Act. These include: the Act's "validation" provisions; the "confirmation of extinguishment provisions; the primary production upgrade provisions; and restrictions concerning the right of indigenous title-holders to negotiate non-indigenous land uses. (34)

The first three sets of provisions referred to by the committee as discriminatory are provisions which protect non-Indigenous land uses or titles at the expense of native title. The Committee found these provisions to be discriminatory even though compensation is available to native title holders for the impairment or extinguishment of native title as a result of these provisions. The Committee's discussion of the confirmation provisions is particularly relevant to the question of how the common law may have a discriminatory impact on Indigenous people. The following comments of Ms McDougall, special rapporteur on Australia, are in response to the government's argument that the amendments to the NTA, in particular the confirmation provisions, are not discriminatory because they cause no further extinguishment of native title than the common law;

Since. European settlement. the native land rights of Aboriginal peoples have been systematically undermined. (terra nullius) completely discounted the cultural value of Aborigines traditional and complex land distribution system.

Because much of the government's argument is that its actions have been justified because they meet the standard of the common law, it is important to note that the common law itself is racially discriminatory.

As defined by the High Court in the Mabo decision, under common law, native title is a vulnerable property right, it is inferior to sovereign title which has the power to extinguish native title without notice, consent or compensation. (35)

The Committee rejected the argument that the common law is the standard against which legislative actions should be judged as non-discriminatory. Where native title is constructed by the common law as a vulnerable property right, extinguished by 'sovereign title' then the common law itself is discriminatory. The High Court has an opportunity in the Mirriuwung Gajerrong case to construct native title as a strong title reflecting the underlying values of Indigenous culture and its relationship to the land. Rather than permitting this culture to be extinguished, the Court can provide a level of protection that will ensure its continuation, while at the same time allowing the non-Indigenous title to be enjoyed to the full.

The right to protection of property

The right to protection of property is one of the fundamental human rights at international law. The Universal Declaration of Human Rights, which is considered to be customary law, the highest form of international law from which no derogation is permissible, (36) protects the right under Article 17:

1. Everyone has the right to own property alone, as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

The right to protection of property is further protected under the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD). Article 5 requires State parties to ensure 'equality before the law without distinction as to race, colour or national or ethnic origin' in the enjoyment of (among other things) 'the right to own property alone and in association with others, and the right to inherit'. The meaning of this protection in relation to Indigenous Peoples is further explained by the CERD Committee's General Recommendation on Indigenous Peoples. The recommendation calls upon state parties to:

Recognise and protect the rights of Indigenous peoples to own, develop, control and use their communal land, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories. (37) [emphasis added]

This is an expansive protection of rights to property. It protects communal ownership of territories, and anticipates that where traditional lands have been confiscated without the free and informed consent of the Indigenous owners that such lands will be returned or where return is not possible, give rise to a right to compensation.

The obligation to 'return' lands and territories, means that the domestic legality of past acts of confiscation of traditional Indigenous lands and territories will not be sufficient to prevent a breach of international law. Consequently, the application of the substantive equality principle to protection of Indigenous rights to property in the present will require that the history of past discrimination be taken into account.

The right to enjoyment of culture

At international law minority groups and Indigenous peoples have a collective right to the enjoyment of their own distinctive culture. This is expressed in Article 27 of the International Covenant on Civil and Political rights (ICCPR):

Members in ethnic, religious or linguistic minorities shall not be denied the right, in community with the members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Protection of culture is also provided by Article 5 (e)(vi) of CERD, which requires states to guarantee equality before the law in relation to:

economic, social and cultural rights, in particular. the right to equal participation in cultural activities.

Ensuring the survival of minority or Indigenous cultures thus requires two things:

• the provision of 'conditions for sustainable economic and social development', and

• that these conditions be 'compatible' with the 'cultural characteristics' of the Indigenous people. (38)

The first requirement above incorporates the recognition that the right to enjoyment of culture includes a right to social and economic development. The right to enjoy a culture is not 'frozen' at some point in time when the culture was supposedly 'pure' or 'traditional'. The enjoyment of culture should not be falsely restricted as a result of anachronistic notions of the 'authenticity' of the culture.

The second requirement above suggests that this right includes the right to equal protection of the circumstances required to maintain and develop that culture. Where land is of central significance to the sustenance of a culture, as it is with Indigenous culture, then the right to enjoyment of culture requires the protection of the land.

The right to self-determination

The right to self-determination is guaranteed by Article 1 of the International Covenant on Civil and Political Rights and Article 1 of the International Covenant on Economic Social and Cultural Rights. The applicability of this right to Indigenous peoples was made clear by the Human Rights Committee in its concluding observations concerning Canada. (39)

The Committee notes that, as the State party acknowledged, the situation of the aboriginal peoples remains "the most pressing human rights issue facing Canadians". In this connection, the Committee is particularly concerned that the State party has not yet implemented the recommendations of the Royal Commission on Aboriginal Peoples (RCAP). With reference to the conclusion by RCAP that without a greater share of lands and resources institutions of aboriginal self-government will fail, the Committee emphasises that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence (art. 1, para. 2). The Committee recommends that decisive and urgent action be taken towards the full implementation of the RCAP recommendations on land and resource allocation. The Committee also recommends that the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with Article 1 of the Covenant.

The Human Rights Committee considered Australian Indigenous policy and legislation under Article 1 of ICCPR in July 2000. In relation to Indigenous control over traditional lands the Committee said;

With respect to Article 1 of the Covenant, the Committee takes note of the explanation given by the delegation that rather than the term 'self-determination' the Government of the State party prefers terms such as 'self-management' and 'self-empowerment' to express domestically the principle of indigenous peoples exercising meaningful control over their affairs. The Committee is concerned that sufficient action has not been taken in that regard.

The State party should take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources .(40)

The bundle of rights approach to native title restricts the control that Indigenous title holders can exercise over their land. Native title is a right to perform specific enumerated practices, not a right to make decisions regarding what practices can be carried out on the land. In contrast, the title to land approach applies a more general definition of native title that leaves a space within which traditional laws and customs can determine the meaning and content of the pendant rights.

In its decision of 18 March 1999 in relation to the amendments to the Native Title Act the CERD Committee confirmed the right of Indigenous people to effective participation under Article 5(c) of CERD as interpreted by General Recommendation XXIII (51) Concerning Indigenous Peoples: (41)

The lack of effective participation by indigenous communities in the formulation of the amendments also raises concerns with respect to the State Party's compliance with its obligations under Article 5(c) of the Convention. Calling upon States Parties to "recognise and protect the rights of indigenous peoples to own, develop, control and use their common lands, territories and resources," the Committee, in its General Recommendation XXIII, stressed the importance of ensuring "that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent". (42)

The bundle of rights approach is contrary to the principles of self-determination and effective participation that put Indigenous people in control of the decisions concerning their land, their territories and their resources.

Freedom of Religion

Article 18 of the ICCPR contains a guarantee of thought, conscience and religion. In its General Comment on Article 18, the UN Human Rights Committee has adopted a broad interpretation of freedom of thought, conscience or religion, encompassing freedom of theistic, non-theistic and atheistic beliefs and freedom not to subscribe to any of these beliefs. The Committee has made clear that the protection of Article 18 is not confined to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions .(43) A UN Special Rapporteur on Religious Intolerance has described religion as "an explanation of the meaning of life and how to live accordingly". (44) Pursuant to State reporting procedures, both the Committee on the Elimination of Racial Discrimination and the Human Rights Committee seek information concerning the protection of the religions of Indigenous peoples .(45)

Application of these principles to native title

There is no doubt that the outcome of the issues before the court in the Miriuwung Gajerrong case will affect the human rights of Indigenous people throughout Australia.

The extinguishment test is the test that ultimately determines the level of protection granted to Indigenous interests in land. The principle of equality requires that the law accord native title holders the same level of protection and security in the enjoyment of title as that enjoyed by non-Indigenous title holders. The extinguishment of Indigenous interests in land for the benefit of non-Indigenous interests in land is racially discriminatory.

The Mabo decision makes it clear that from 1975 the Racial Discrimination Act, 1975 (Cth) (the RDA) rendered invalid Crown grants which had the effect of extinguishing Indigenous interests in land for the benefit of non-Indigenous interests. However, prior to the enactment of the RDA in 1975 racial discrimination was not illegal in Australia.

Many of the Crown grants that are before the court in the Miriuwung Gajerrong case were authorised by statutes that were enacted before 1975. These enactments have not been rendered invalid by the operation of the RDA. The difficulty in determining whether Crown grants authorised by these statutes had the effect of extinguishing native title is that the purpose of these statutes was not to extinguish native title but to create interests in land over which it was assumed there was no prior owner. To add to this conundrum, when native title was recognised in 1992 it was constructed as a pre-existing title; a burden on the Crown since the acquisition of sovereignty. (46) It is in these circumstances that the construction of native title by the court, as either a bundle of rights or as a title to land, is instrumental in determining whether native title survives the grant of various non-Indigenous interests in the same land. It is also the reason why the courts cannot characterise their role in the extinguishment of native title as simply giving effect to past discriminatory legislation. The form in which the courts recognise native title today is determinative of whether native title is extinguished by our summary past dealings on Indigenous land.

Where constructed as a bundle of rights native title is liable to extinguishment, right by right, whenever the exercise of a particular right is inconsistent with the enjoyment of non-Indigenous rights. Where native title is constructed as an interest in land it is extinguished only as a result of a deeper inconsistency between this underlying right to the land and the enjoyment of non-Indigenous rights. The 'bundle of rights' approach to the characterisation of native title facilitates the finding of 'inconsistency' (and therefore facilitates the finding of extinguishment) through:

• restricting the rights that may be 'recognised' as native title as rights to 'physical use',
• atomising the rights recognised into discrete minor rights, and
• abandoning the attempt to maintain the Indigenous character of the right recognised at common law.

The construction of native title as bundle of rights makes possible its partial and progressive extinguishment. It is only when native title rights are understood as entirely independent of each other, that the possibility of extinguishing them progressively one by one arises:

... if particular rights and interests of indigenous people in or in relation to land are inconsistent with rights conferred under a statutory grant, the inconsistent rights and interests are extinguished, and the bundle of rights which is conveniently described as "native title" is reduced accordingly. (47)

The result is that native title can be progressively weakened, but cannot ever regain its initial strength.

In a particular case a bundle of rights that was so extensive as to be in the nature of a proprietary interest, by partial extinguishment may be so reduced that the rights which remain no longer have that character. (48)

This construction of native title makes native title inherently weaker than non-Indigenous forms of property. Treating a mere impairment of native title as partial extinguishment favours property rights of kinds held by non-Indigenous people over those held only by Indigenous people and is inconsistent with Australia's obligations in relation to equality. These obligations require that the common law presumption against extinguishment of a proprietary interest be extended to the recognition and protection of native title which has been proven to exist in accordance with Indigenous law and customs.

The effect of the progressive extinguishment of native title through the bundle of rights approach is illustrated by the application of the majority's approach to extinguishment of pastoral leases and mining leases in Western Australia. On the majority's approach the enclosure or improvement of pastoral leases had the effect of permanently extinguishing 'the rights of Aboriginal people to enter to seek their sustenance in their accustomed manner'. (49) Having regard to the magnitude of the areas which can be treated as enclosed or which have been enclosed in the past and the comparatively inconsequential character of the works which can constitute enclosure, this has a "potentially dramatic impact". (50) It falls for the High Court to consider whether the particular outcomes of the principles applied by the majority in the Full Court 'weigh in favour of a somewhat less draconian limitation on the ability of the common law to recognise and protect native title rights and interests'. (51) Where the choice is open, the High Court must prefer interpretations of the relevant Western Australian statutes and regulations that are consistent with the guarantee of equality and the rights of minorities, and hence a less draconian approach to the recognition and protection of native title in land subject to pastoral leases.

The effect of the increased extinguishment introduced by the bundle of rights approach is further illustrated by the majority's conclusion that statutory provisions vesting ownership of minerals and petroleum in the Crown and certain mining leases extinguish native title. This too has considerable impact on the level of protection accorded to native title. (52) However, as the decisions of Justice Lee at first instance and Justice North in the Full Court show, there is room for argument that the mining leases granted pursuant to the scheme of the Mining Act 1978 (WA) and Mining Regulations 1981 (WA) did not extinguish native title. Similarly, there is room for argument that the non-exclusive vesting of minerals and petroleum in the Crown pursuant to s 3 of the Constitution Act (WA), s 117 of the Mining Act 1904 (WA), s 9 of the Petroleum Act 1936 (WA) and s 3 of the Minerals Acquisition Ordinance 1953 (NT) did not extinguish native title. That such grants should not be held to extinguish native title is supported by the High Court's decision in Yanner v Eaton in relation to non-exclusive governmental rights of control over fauna, (53) the acceptance by the majority in the Full Court of non-exclusive governmental rights over water, and in the approach of Justices Lee and North.

Where there is any doubt, the Court should strive to reach a finding that the rights of native title holders and the rights of holders of mining leases can be exercised concurrently. Where such a finding is unavailable, the Court should construe the grant of a right to mine as equivalent to a regime of strict regulation which, to the extent of any inconsistency, impairs or suspends native title for the duration of the mining operation. (54)

The 'bundle of rights' characterisation of native title is a construction of the right that directly entrenches every small incursion into the right so as to ensure that the accumulation of small incursions finally results in the complete erosion of the substantial right. There is no notion of sovereign power being exercised so as to regulate or curtail Indigenous interests in land. Only extinguishment will result from the creation by the Crown of inconsistent rights. In this way Indigenous culture is inexorably removed, parcel by parcel, to give way to new interests in land as they are created.

Under the right to land approach, adopted by Justices Lee and North, non-Indigenous rights are given priority but not so as to extinguish native title whenever there is an inconsistency. Because this latter approach enables native title to survive the grant and enjoyment of non-Indigenous rights, there is an incentive to both parties to reach an agreement as to how their interests can co-exist. In this way the law assists in the conciliation of interests rather than their arbitration.

This holistic approach to the construction of native title allows room for regulation or suspension of native title, rather than its extinguishment. This is consistent with human rights norms, which require the conceptualisation of native title in a manner which promotes its resilience, rather than its fragility and susceptibility to extinction forever in the eyes of the law .(55)

• R ecognition of Aboriginal law and culture ; The bundle of rights approach constructs native title as a defined and finite series of discrete rights. Each right, whether it be a right to control access to the land or a right to hunt on the land, is extinguished severally or jointly by the Crown's creation of inconsistent rights. There is no recognition of an underlying relationship with the land which unifies these individual rights into a system of rights. In particular there is no recognition of an abstract or conceptual level within Indigenous culture which orders physical activities or presence on the land into a system of laws. For Indigenous culture the abstract level which has this ordering effect is the spiritual relationship between the land and the people. The failure in the bundle of rights approach to recognise and protect this aspect of Indigenous culture is a denial of its unique and essential identity.

The result of the approach of the majority in the Miriuwung Gajerrong case is that even though Aboriginal people may continue to maintain a spiritual connection with the land, the common law will consider their native title rights to be extinguished where an inconsistency occurs. This disjuncture between Aboriginal law and culture and common law recognition and protection was acknowledged by their Honours to be a result of their limited construction of native title.

That the common law does not provide for the protection or enforcement of purely religious or spiritual affiliation with land, divorced from actual physical use and enjoyment of the land, has the consequence that the continued recognition of traditional laws and observance of traditional customs may substantially maintain a connection between the indigenous people and the land even after native title rights and interest have under Australian law been totally extinguished, for example by a grant of freehold. (57)

What their Honours did not acknowledge was that the failure of the common law to recognise and protect Indigenous culture, especially that aspect which identifies its essential characteristic, is a breach of the human rights of Indigenous people.

In contrast to the bundle of rights approach, the right to land approach does recognise the systemic and spiritual basis of Indigenous traditional law and custom. This approach gives effect to the recognition of the interconnectedness of Indigenous connection to land and Indigenous culture. It does not restrict the right afforded by native title to limited physical usage rights which are disconnected from any of the cultural meanings that give them purpose. Instead, the 'title to land' characterisation of native title recognises that the activities on the land flow from and take their meaning from this more fundamental connection. As Justice North stated in his dissenting judgment in Full Federal Court Decision in Miriuwung Gajerrong :

Native title is a right to the land itself. That conclusion reflects the traditional law of the aboriginal people. (58)

. aboriginal traditional law does not treat the "rights" as stand-alone rights. The incidents of native title depend upon the connection of the aboriginal people with the land. The underlying connection is the foundation for the exercise of various rights. The land is not just the place to hunt. Rather the right to hunt follows as a result of the significance of the land as the centrepiece in aboriginal law and culture. (59)

In order to extinguish native title under a 'title to land' approach, the rights created by a legislative or executive act must be inconsistent with the fundamental relationship of Indigenous people to the land. Inconsistency at the level of contingent or incidental rights will not extinguish native title, but hold it in abeyance for the duration of the inconsistency. This construction of native title precludes the possiblity of 'partial' and progressive extinguishment - and so accords protection to the entirety of the right (just as other common law rights are protected).

The 'title to land' characterisation of native title thus satisfies the substantive equality standard for the protection of the right to enjoy and develop culture in that it legally protects the circumstances required to maintain Indigenous cultures that are reliant upon their connection to their lands.

The common law recognition of native title within a human rights framework

The above discussion shows how the common law construction of native title affects the human rights of Aboriginal people. What is now argued is that native title is an issue that the common law itself recognises should be determined under the guidance of international human rights standards. The basis of this argument is fivefold;

1. The principles of equality and respect for cultural difference underlie the recognition of native title in the Australian common law.
2. The recognition of native title by the common law was influenced by changes in international law and developments in the common law of native title should be guided by developments in international law.
3. In the development of the common law, international law is a legitimate and important influence.
4. Human rights principles provide the common law with a set of guidelines for the recognition of a system of law and culture whose origins lie outside of the common law.
5. The interpretation of statutes that create non-Indigenous property rights over native title land should be guided by human rights principles.

1. The principles of equality and respect for cultural difference underlie the recognition of native title in the Australian common law

The Mabo decision represented a fundamental break with the previous common law doctrine regarding the status of Indigenous rights to land. Prior to the Mabo decision, the doctrinal explanation of the acquisition of sovereignty in Australia was that the British had settled territories that although already inhabited could be considered uninhabited or 'terra nullius'. The acquisition of territory that was terra nullius allowed the Crown to take absolute beneficial ownership of all the land. As Brennan C.J. stated in Mabo:

It was only by fastening on the notion that a settled colony was terra nullius that it was possible to predicate of the Crown the acquisition of ownership of land in a colony already occupied by indigenous inhabitants.

It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other. If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too. (60)

The consequence of the High Court discarding the distinction between inhabited colonies that were terra nullius and those that were not was that the rights and interests of Indigenous inhabitants in land survived the acquisition of sovereignty by the British Crown.

The High Court has stated that the overturning of the terra nullius doctrine in the Mabo decision was based upon and made necessary by a new understanding of historical 'fact'.

... the gist of Mabo [No 2] lay in the holding that the long understood refusal in Australia to accommodate within the common law concepts of native title rested upon past assumptions of historical fact, now shown then to have been false. (61)

This false assumption of 'historical fact' was really a set of values or assumptions that interpreted Indigenous societies as lower on the 'social scale' than British society and consequently not worthy of legal protection. It was the assumption that the difficulty of explaining Indigenous connection to land within the conceptual categories already known to the common law legitimated ignoring it altogether.

The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them" .(62) [emphasis added]

The new 'fact' accepted in the Mabo decision was the re-evaluation of these values or assumptions. It was a re-evaluation, based on contemporary values of equality and social justice, of the status of Aboriginal 'social organization and customs', specifically in relation to the status of their connection to land.

The theory that the indigenous inhabitants of a "settled" colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs. (63)

The re-evaluation of the relationship between Indigenous law and custom and the common law in Mabo was not understood as equating Indigenous connections to land into common law property right categories. Rather, the relationship was understood as a question of how a connection to land established by customary Indigenous social organization and external to the common law could nevertheless be recognised by the common law. Consequently, the decision recognised a right to land that had its source in Indigenous law.

The basis of this re-evaluation was an understanding of equality, not as applying the same standards regardless of culture, but as recognising cultural difference. This understanding of equality requires that fundamentally different forms of social organization be recognised as having equal validity and respect. It implies a standard of equality based on equality of cultures. The assumption of cultural equality is determinative of the Court's decision in Mabo to develop principles that apply to all Indigenous societies in Australia and not just the society of the Meriam people.

The theory that the indigenous inhabitants of a 'settled' colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principle to be made in the present case. This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher 'in the social organization' than the Australian Aborigines whose claims were 'utterly disregarded' by the existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not. (64)

The court's decision to overrule the existing authorities was a decision not to distinguish between cultures based on their values and way of life, but to accept that cultures are entitled to equal respect regardless of their social organisation.

Discontinuity within native title

Mabo created a discontinuity between what was regarded before and after Mabo as an acceptable basis for the common law treatment of Indigenous rights to land. However the common law has not shrugged off its discriminatory past. The discontinuity between equality and discrimination still sits within the logic of native title as a distinction between the process of recognition and extinguishment. Recognition is understood as overturning terra nullius by giving legal status to, and so protecting Indigenous rights to land. Extinguishment, on the other hand, preserves non-Indigenous interests in land at the expense of Indigenous interests. It occurs because interests created by the Crown are granted greater protection than Indigenous interests in land.

The tension that exists between the recognition of native title with its origin in cultural equality, and extinguishment with its origin in discrimination, needs to be resolved. To date the High Court has not been required to resolve these contradictory processes within the common law partly because they have not been presented to the Court as interrelated issues. In Wik the issue of whether native title is extinguished by the grant of a pastoral lease was dealt with hypothetically in the absence of a determination of the native title claim. In Fejo v Northern Territory, (65) the High Court's decision that the grant of fee simple extinguished native title was also made in the absence of a native title determination and was based on the nature of the fee simple grant. In Yanner v Eaton (66) the proceedings were commenced as a criminal action in which the protection of s 211 of the NTA was invoked as a defence. The Miriuwung Gajerrong appeal is the first native title case to be heard by the High Court in which the question of extinguishment arises in the context of a claim where traditional laws and customs have been clearly established and the traditional connection to the land is ongoing. The way in which the issues are presented to the court is not the only reason why the fundamental inconsistency in the common law has not been addressed.

The issues of recognition and extinguishment of native title have been kept separate in the development of the common law doctrine of native title. There are two structural bases for their separation.

• The temporal separation of recognition and extinguishment . Native title is a retrospective doctrine. It does not say that Indigenous rights to land should have been a legal right. It says that native title was always a legal right, but simply wasn't 'recognised' as such. (67) The doctrine of native title not only reformulates legal relationships to land. Native title reformulates legal history.

• The separation of responsibility for the processes of recognition and extinguishment between the judiciary and the executive/legislative government . Just as the processes of recognition and extinguishment are separated in time, the responsibility for each is also divided between the judiciary and the executive government. 'Recognition' is posited as a process of the common law, while 'extinguishment' is posited as a process of the executive or legislature.

The Miriuwung Gajerrong case presents the High Court with a factual context in which the recognition and the extinguishment of native title are interrelated issues. The court is poised to determine at a level of principle the nature of native title and its capacity to withstand past discrimination. Once it is recognised that the court's capacity to protect native title is a result of the court's construction of the doctrine, then it is possible to understand the processes of 'recognition' and 'extinguishment' as contemporary processes of judicial interpretation. A bundle of rights approach to recognition creates an inherently weak title that is able to be eroded, piece by piece so as to accommodate non-Indigenous interests. Its construction ensures its disintegration. Faced with two alternative constructions of native title, one resulting in the inevitable extinguishment of native title in a piecemeal fashion, the other resulting in the suspension of native title rights for the duration of the conflicting interest in land, the court should be guided in its choice by contemporary international human rights principles of equality and non-discrimination.

2. The recognition of native title was influenced by changes in international law and its development should continue to be guided by international law

As indicated above the Mabo decision represents a fundamental break from the past denial of Indigenous interests in land. (71)

The status accorded Indigenous rights to land by the common law was inextricably linked to the doctrine which justified the British acquisition of sovereignty over the various Australian territories; terra nullius.

The international legal doctrine of terra nullius originally applied only to territories which were in fact uninhabited by any people. However, the doctrine was extended to apply to some territories occupied by Indigenous people, on the basis that a territory could be considered uninhabited if the inhabitants were without laws, without a sovereign and primitive in their social organisation. (72) The international doctrine of 'terra nullius' was applied to the British acquisition of sovereignty over Australian territories on this basis.

The legal consequences of acquiring sovereignty in a territory that was 'terra nullius' had similar legal consequences to acquiring sovereignty in other ways such as conquest or cession, in that all three carried with them the consequences that:

• the common law became the law of the colony;
• Indigenous peoples became subjects of the Crown; and
• Indigenous people became subject to and entitled to the protection of the common law.

However, the legal consequences of settlement of a territory that was 'terra nullius' differed from the legal consequences of other ways of acquiring sovereignty in that it allowed the Crown to take absolute beneficial ownership of all the land. As Brennan C.J. stated in Mabo:

t was only by fastening on the notion that a settled colony was terra nullius that it was possible to predicate of the Crown the acquisition of ownership of land in a colony already occupied by indigenous inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other. If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too. (73)

The doctrine of terra nullius was overturned in the Mabo decision, or as Brennan CJ put it, the Court 'discarded':

...the distinction between inhabited colonies that were terra nullius and those which were not. (74)

This left the consequences that:

• sovereignty was still vested in the Crown from the date of settlement;
• the common law still became the law of the colony from date of acquisition of sovereignty; and
• Indigenous people still became subjects of the crown, entitled to the protection of the common law.

The overturning of the doctrine of terra nullius also had the consequence that, because the territory could no longer be thought of as having been uninhabited, the acquisition of sovereignty did not have the effect of vesting absolute beneficial ownership of land in the Crown. (75) Consequently, the rights and interests of indigenous inhabitants in land survived the acquisition of sovereignty by the British Crown and the importation of the common law as the law of the territory.

The re-evaluation of the doctrine of terra nullius is discussed above as a consequence of changes in contemporary values and particularly in the principle of equality. (76) What is argued in this section is that, even though terra nullius has been discarded as an international law doctrine, the recognition of native title does not require that the nexus between international law and the common law treatment of Indigenous people within the legal system of a sovereign state be discarded. In fact, the Mabo decision confirms that the domestic recognition of Indigenous people's relationship to land continues to be strongly influenced by international law standards. It also confirms that where international law standards change, the common law approach to Indigenous people should, where possible, change to reflect this. Thus, in Mabo, the influence of terra nullius on the common law's denial of Indigenous rights to land is replaced by the influence of international human rights standards on the recognition of Indigenous rights to land.

This exchange takes place in Justice Brennan's judgment (with which the majority agreed);

If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depends on the notion.can hardly be retained. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.

The fiction [terra nullius] 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. The policy appears explicitly in the judgment of the Privy Council in In Southern Rhodesia in rejecting an argument that the native people "were the owners of the unalienated lands long before either the Company or the Crown became concerned with them and from time immemorial . and that the unalienated lands belonged to them still".

Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.

However recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system. (77)

The court's receptivity to changes in international law standards contributed to its recognition of native title. In developing principles that will determine the nature of native title and its protection within the common law, the court should continue to take into account the evolution and elaboration of international law as it affects Indigenous people.

3. In the development of the common law international law is an important influence

In Mabo Brennan J. held that an unjust and discriminatory doctrine which refused to recognise the rights and interests in land of the Indigenous inhabitants could have no place in the contemporary law of this country. Justice Brennan confirmed that while 'the common law does not necessarily conform with international law, international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights'. (78) Thus Brennan J. confirmed that the expectations of the international community in this regard accord with the contemporary values of the Australian people. His Honour held that it would be contrary both to international standards and to fundamental values of the common law to entrench a discriminatory rule, which because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denied them a right to occupy their traditional lands. (79)

The singularity of the common law lies in the ability of the courts to mould the law to correspond with the contemporary values of society. This is not to say that responsibility for keeping the common law consonant with contemporary values means that changes in the common law are made whenever a judge thinks change desirable. Clearly, 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. (80) The development of the common law of native title in conformity with Australia's international human rights obligations would both achieve the objective of keeping the law in logical order and form, and accord with the contemporary values of the Australian people.

There is no doubt that the common law of native title is in a developing stage. As discussed previously, in the Miriuwung Gagerrong case the issue of extinguishment is, for the first time presented to the court with the claimants' connection fully argued and accepted. The interrelationship of the Court's construction of native title and the consequent extinguishment or survival of native title is, for the first time, laid bare.

The basis of the majority's finding that the common law does not recognise a traditional spiritual relationship with the land reflects the lack of authoritative precedent available to it.

In Fejo six members of the High Court in their joint judgment at CLR 126 say that a grant of fee simple 'simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land' and at CLR € 'the rights of native title are rights and interests that relate to the use of the land by the holders of the native title'.

In our opinion references to enjoyment of rights and interests in respect of the land in these passages, confirm that the native title rights and interests that are recognised and protected by the common law are those which involve physical presence on the land, and activities on the land associated with traditional social and cultural practices. (81)

The link between finding that the common law does not protect spiritual connections to authority is very tenuous. Similarly the determination that native title is a bundle of rights is not based on clear authority to this effect. The authority for this construction comes from decisions where the court has referred to native title rights as a pluralistic concept. These authorities are not conclusive of a bundle of rights approach because they could also be read as consistent with the title to land approach. The title to land construction of native title also contains a plurality of rights. However these rights are dependant on and tied together by an underlying relationship to the land. None of these authorities relied on by the majority say that native title is nothing more than a multiplicity of rights and interests.

In view of the lack of direct authority on the nature of native title the court should be guided by international law governing the relationship of Indigenous people to their land. On this basis the courts would seek to maintain the integrity of both the grant of non-Indigenous interests and native title as much as possible. Inconsistency can be dealt with through suspension or regulation and extinguishment would be the last option.

4. Human rights principles provide the common law with a set of guidelines for the recognition of a system of law and culture whose origins lie outside of the common law

Native title is characterised as an interest in land based on something entirely outside the common law (Indigenous law and custom), but nevertheless 'recognisable' by the common law.

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. (82)

The existence of the Indigenous law and custom is defined in the above paragraph as a matter of fact. (83) Yet of itself, the fact of Indigenous connection to land has no legal consequences within the common law system. Between the proof of the fact of Indigenous connection and the grant of common law protection is a further process of 'recognition'.

This is a critical ambiguity in native title doctrine. Indigenous law and custom is understood as the origin of the right, but is legally unenforceable until it is recognised by the common law. Legal protection is thus dependant on a process of translation, and only that which is 'translated' will be protected by the common law. (84)

Like any translation process, the recognition of Indigenous interests in land within the non-Indigenous legal system seeks to find equivalence between that which is the subject of the translation and that which is the product of translation. The construction of native title as a product of translation should find equivalence with the traditional law and customs of Indigenous people as the subject of the translation process. At the same time there is implicit in the translation process a recognition that exact equivalence between the Indigenous relationship to land and a common law interest in land can never be found. If an exact equivalence could be found then there would be no need to differentiate between the common law recognition of native title and its origins and content.

The impossibility of constructing an exact equivalence between these two systems of meaning, of constructing an equivalent notion of Indigenous relationships to land within the common law, should not be a basis for abandoning the recognition process. To do so would mean a return to the terra nullius approach of Lord Sumner in In re Southern Rhodesia: The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. (85)

The High Court rejected this approach of not recognising Indigenous interests in land because their 'usage and conceptions of rights and duties' were irreconcilable with 'rights of property as we know them'. Justice and equality require that the common law recognise Indigenous 'social organisation' and 'transmute it into the substance of [transferable] rights of property as we know them'.

Requiring the court to recognise Indigenous law and culture still leaves it with a discretion as to what meaning to give it. How the 'translation' process is constructed will influence the extent to which the meaning and content of Indigenous connection to land is expressed through or diminished by the native title recognised. Translating Indigenous law so as to render it comprehensible within the common law will always involve to some degree an imposition of concepts and assumptions of the common law onto the understanding of the Indigenous law system. Yet if the recognition of native title is to be ascertained by reference to Indigenous laws and culture then direct analogy to common law titles may efface the Indigenous character of the interest almost entirely.

What is argued in this section is that the impossibility of finding a perfect equivalence between an Indigenous relationship to land and common law recognition of native title should not signal to the courts that the search for equivalence in its translation of Indigenous law and culture can be set aside. Human rights principles provide the court with guidelines for the translation of Indigenous law and culture within the common law. In fact the principle of equality and its construction at international law provides a paradigm on which to base the incorporation of difference within the framework of equality/equivalence.

As discussed above the international law concept of equality is a substantive one. The essential distinction between a formal and a substantive standard of equality is their treatment of difference. Formal equality is achieved by erasing difference. Substantive equality on the other hand not only permits the recognition of difference but may require it where this is necessary to achieve equality between racial groups. Judge Tanaka of the International Court of Justice explained this concept as follows:

The principle of equality before the law does not mean the absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equals and unequally what are unequal.To treat unequal matters differently according to their inequality is not only permitted but required. (86)

Rather than the courts focusing on the differential treatment on the basis of race, a substantive equality approach focuses on the impact of that treatment on the racial group concerned. Differential treatment is discriminatory where it has an invidious impact on the racial group concerned. On the other hand, not to recognise differences is also discriminatory where it denies and oppresses the cultural identity of the racial group. This approach can provide a guide to the court's recognition of cultural difference through the concept of native title.

Equivalence is to be found in the level of respect or protection that the common law extends to native title being equal to the level of respect and protection that the common law extends to non-Indigenous interests in land. A substantive equality approach would seek to provide Indigenous interests in land with the protection necessary to ensure they can be enjoyed, according to their tenor and to the same extent as non-Indigenous interests in land. Constructed in this way, native title is a vehicle for the continued enjoyment of Indigenous culture within the protection of the common law.

Within this human rights framework based on equality it is possible to compare the two constructions of native title that are before the High Court in the Miriuwung Gagerrong case. The translation of Indigenous relationships to land into a bundle of rights fails to provide protection to the enjoyment of Indigenous law and culture within the common law.

Translating Indigenous relationships to land into a bundle of rights

In constructing native title as a bundle of rights their Honours, Justices Beaumont and von Doussa, appreciate that native title is necessarily a translation of traditional laws and customs and as such, a construction of the common law.

Once rights and interests that involve the physical use and enjoyment of land are identified, their recognition by the common law gives rise to jural rights under the common law system. Native title rights and interests thus give rise to jural rights which are "artificially defined" under the common law because they arise from the acknowledgment and observance of traditional laws and customs under a different legal system. The common law accords a status to, and permits enforcement of, those rights according to common law principles. The artificiality is a consequence of the intersection of the common law system of law with traditional laws and customs of the indigenous people. (87)

They argue that native title as a construction of the common law, is subject to the limitations in the capacity of the common law to recognise particular attributes of Indigenous culture. One of these limitations is its recognition of the spiritual connections which constitute the underlying relationship between Indigenous people and the land. After quoting from The Idea of Property in Land their Honours Justices Beaumont and von Doussa comment

The authors, while recognising that an aspect of the behavioural notion of property is a perception of belonging to the land, which in the context of native title would include spiritual, cultural and social connection with the land, it is the empirical facts, and the behavioural data that evidences that connection, which is recognised and protected by the common law .(88)

As a result of this 'inherent' limitation in the common law, that in the context of native title it only recognises 'empirical facts and behavioural data', there is no recognition of a spiritual level within Indigenous culture which transforms physical activities or presence on the land into a system of laws. The failure in the bundle of rights approach to recognise and protect this aspect of Indigenous culture is, as their Honours make clear, a denial of its unique and essential identity.

While the relationship of indigenous people with their traditional home land is "primarily a spiritual affair" or as Blackburn J. described it in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR at 167, a "religious relationship", the common law applies to protect only the physical enjoyment of rights and interests that are of a kind that can be exercised on the land, and does not protect purely religious or spiritual relationships with land. (89)

It is unclear why their Honours maintain that the common law will only recognise and protect 'native title rights and interests. which involve physical presence on the land, and activities on the land associated with traditional social and cultural practices.' It is posited as a premise rather than a conclusion. As a premise it is simply a terra nullius style denial of Indigenous culture. As a conclusion it appears to be linked to the way in which their Honours approach the task of translating Indigenous culture into the common law recognition of native title.

One reason why their Honours posit this limitation in common law recognition of native title is that to give native title a systematised basis, is to give it the character of common law property rights. Because native title is not an institution of the common law then, it is argued, it 'cannot be elevated to something akin to common law tenure by describing them [native title rights] as "incidents" (90) of an abstract form of title from which pendant rights are derived.

Implicit in their Honours reasoning is that because there is no equivalent of Indigenous relationships to land within the common law system of tenure, the recognition of these unique relationships within the common law cannot resemble or bear any equivalence to the common law. Where a resemblance does appear between native title and common law tenures it is a misrepresentation of the sui generis nature of native title. This reasoning can be criticised from a human rights perspective in three ways.

First, the task of cultural translation before the court does not require that native title be constructed as a title bearing no resemblance to a common law system of tenure. The uniqueness lies in the relationship that Indigenous people have with the land. The task for the court is to render this unique relationship comprehensible (recognisable) within the common law. As indicated above this process will always involve to some degree an imposition of concepts and assumptions of the common law onto the understanding of the Indigenous law system. (91) The danger does not lie in the process of analogising native title to common law concepts but in whether the enjoyment of Indigenous culture is denied through any particular analogy.

Second, the impossibility of there being a common law construct of native title which is equivalent to the Indigenous relationship to land does not require that the search for equivalence be abandoned. Instead the search for equivalence in the common law's translation of Indigenous culture should be aimed at the level of protection that the common law gives to Indigenous relationships to land compared with the protection it gives to non-Indigenous interests in land. If likening native title to a proprietal interest within a tenurial system provides a vehicle for the enjoyment of the unique Indigenous laws and customs within the protection of the common law then such a translation is justifiable as providing substantive equality to Indigenous people. Richard Bartlett makes this point in his argument that, on the basis of equality, the common law presumption against the extinguishment of a proprietary interest should be extended to native title. (92)

Third, native title does not have to be 'elevated' to a common law tenure to recognise that, within Indigenous culture, a systemic relationship exists between the activities that are traditionally carried out on the land. Anthropologist Peter Sutton characterises these relationships according to core and contingent rights. (93) Core rights include 'the right to assert a requirement to be asked for permission to access, use or alter the area by those who are not holders of core customary rights and interests'. (94) Within the traditional system the right to hunt or fish cannot be seen in isolation from the right to grant access to carry out this activity. Where the right to control access is disconnected from or given the same value as the right to fish, each equally extinguishable by the creation of any inconsistent rights, then the protection which the right to control access gives to the right to fish (or hunt) is denied. This, in turn, denies native title the inherent strength which comes when rights are interrelated and systematised.

The refusal of the common law to construct native title in a way that accepts Indigenous forms of social organisation in their own terms can be seen as a return to the terra nullius approach overturned in the Mabo decision.

The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a "desert uninhabited" country. The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory (and not merely the personal law of the colonists). Colonies of this kind were called "settled colonies". Ex hypothesi, the indigenous inhabitants of a settled colony had no recognised sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organisation. (95)

Terra nullius deemed that the failure to exhibit an organisational structure analogous to 'civilised' society was tantamount to a failure to exhibit an organisational structure at all. The recognition of native title by the High Court in 1992 was a recognition that law did govern Aboriginal society when sovereignty was acquired by the British and that Indigenous law was a subtle and elaborate system which provided a reasonably stable order of society. The bundle of rights approach, like terra nullius, denies recognition and protection to an Indigenous system of rights on the basis they are unique and therefore not analogous to 'part of the tenure system of the common law'. (p186) Like terra nullius the bundle of rights approach denies Indigenous laws and culture the recognition of an organisational structure at all.

Translating Indigenous relationships to land into a right to land

In contrast to the bundle of rights approach, native title as a right to land does recognise the systemic nature of Indigenous traditional law and custom. By conceptualising native title as a holistic entity from which all pendant rights derive their meaning and authority, the 'right to land' approach;

• offers greater protection and ensures the durability of native title, despite incursions into, 'regulation' or 'suspension' of the exercise of the rights which derive from the title,
• . allows greater openness in the definition of native title.

The 'title to land' approach employs common law property notions to establish the degree of protection of native title that is to be granted by the common law.

It reflects the fact of aboriginal law translated into the language of the Australian legal system. What is involved is a characterisation of the relationship between aboriginal people and the land translated into terms which have meaning for Australian law. (96)

North's approach is consistent with the following statement of Brennan CJ in Mabo, which illustrates how the analogy to common law proprietary interests ensures the capacity of the common law to protect native title.

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. (97)

In this statement Brennan C.J. does not assert that native title is equivalent to a 'proprietary' interest under the common law. Rather, the statement signifies that while the indigenous relationship with land is entirely different to common law 'proprietary' interests in land, it requires an equivalent degree of protection. It indicates that native title is to be regarded as a common law property right and entitle to the protection that this characterisation warrants.

Consequently, the 'right to land' approach satisfies a substantive equality standard in relation to property rights, in that it protects the circumstances required to protect the right, without prescriptively defining the exact content of native title. Rather than merely substituting common law categories for the Indigenous nature of the right, it provides a greater degree of openness for the expression of the Indigenous character of the right to be protected.

5. The interpretation of statutes that create non-Indigenous property rights over native title land should be guided by human rights principles

It was argued above (98) that, within the common law doctrine of native title, the processes of recognition and extinguishment are posited as distinct and separate. Recognition is a process of the common law, while 'extinguishment' is a process of the executive or legislature. Extinguishment occurs at the time that the Crown act creates an interest in the land which is inconsistent with native title while recognition occurs at the time of the court's determination. Accordingly the Court's role in the extinguishment of native title is limited to interpreting the legislative or executive act that created a non-Indigenous interest in the land to determine whether there was an intention to extinguish native title. As pointed out above, this approach fails to appreciate the interrelationship between the court's contemporary construction of native title and the capacity of native title to survive the past creation of non-Indigenous interests in land. It also fails to appreciate the anomaly created by the fact that native title was only recognised by the court after the 'extinguishing' acts took place.

In this section it is argued that even if it is accepted that the extinguishment of native title is effected through legislation, the court should be guided by human rights principles in its interpretation of these statutes. This argument is not without judicial precedent. It is a long-established presumption that a statute is to be interpreted and applied, as far as its language admits, so as to be consistent with the established rules of international law. (99) If the legislature intends to effect inconsistency "it must express its intention with irresistible clearness to induce a Court to believe that it entertained it". (100) Where there is ambiguity in the meaning of a statute, the Court has held that it should favour a construction which accords with the obligations of Australia under an international treaty .(101) This is because, the Court has said, a common sense approach suggests that Parliament intended to legislate in accordance with its international obligations .(102) In more recent cases, the Court has indicated that a narrow conception of ambiguity is to be rejected. (103)

The rules of statutory interpretation determining whether the Crown has extinguished or appropriated a citizen's property is that this will not occur unless there is a clear and plain intention to do so. The corollary of the requirement for a clear and plain intention is the common law presumption that the Crown will not so intend. (104) An intention to extinguish is not evinced from the state of mind of the legislators at the time of legislating but from the words and construction of the statute. (105)

Because the statutes which created non-Indigenous interests in land were based on an assumption that there was no prior Indigenous interests in the land there could never be an express intention to extinguish native title. In both the Mabo and Wik decisions this difficulty appears to be overcome by a finding that a clear and plain intention to extinguish native title can be implied when interests created by past Crown acts and native title are unable to co-exist .(106) Toohey J. quoted from Lambert J. in the Canadian decision in Delgamuukw v British Columbia (1993) 104 DLR 470 at 668 to explain the test;

Implicit extinguishment is extinguishment brought about by sovereign power acting legislatively in an enactment which does not provide in its terms for extinguishment but which brings into operation a legislative scheme which is not only inconsistent with Aboriginal title or Aboriginal rights but which makes it clear and plain by necessary implication that, to the extent governed by the existence of the inconsistency, the legislative scheme was to prevail and the Aboriginal title and Aboriginal rights were to be extinguished. (107)

This then is the inconsistency test. It takes the focus away from whether, at the time of the enactment, there was an express intention to extinguish proprietary rights, to a comparison between two sets of proprietary interests; those created by the Crown and native title. It is the effect, or implication of the creation of interests by the Crown on native title rather than the actual intention of the Crown in the creation of these interests that extinguishes native title.

In determining whether native title is extinguished as a result of the creation of non-Indigenous interests over native title land, constitutional jurisprudence should be applied to the extinguishment of native title in the same way as it is applied to the appropriation of general property. For the purposes of s51(xxxi) of the Constitution, before an acquisition of property is held to have occurred, a very thoroughgoing elimination of practical enjoyment of the ownership of land should be applied. In relation to s 51 (xxxi), there are numerous situations in which a diminution of rights or restriction of use will not amount to an acquisition of property. (108) To establish an acquisition, it must be shown that the relevant person has been denied the substance and reality of its proprietary interest or everything that made it worth having. (109) There are many measures which in one way or another impair an owner's exercise of his or her proprietary rights which involve no acquisition such as pl (xxxi) speaks of. (110)

In general property law, an example of the temporary displacement of rights dependent on underlying freehold title which does not destroy the underlying title can be seen in planning legislation. Such legislation does not have the effect of extinguishing the underlying freehold title. Instead, for the period of restrictions upon the rights of the freehold title holder to use and enjoy the land in specific ways, the rights affected are suspended, but the freehold title remains in existence.

Another example in general law is the effect of statutes giving the Crown or a statutory authority control over waterways. Again, the rights of the holder of the freehold are overridden, but not extinguished. (111) From a human rights perspective, there can be no justification for a discriminatory distinction between the continuation of freehold title in such circumstances and the continuation of native title in circumstances involving no "fundamental, total or absolute" inconsistency reflecting the intention of the Crown to remove all connection of the Aboriginal people from the land in question. (112)

Similarly in general property law, the notion of suspension of rights and interests is well accepted, reflecting an idea which lies at the foundation of the doctrine of estates. (113) It would again be contrary to the prohibition of discrimination to decline to extend the concept of suspension of rights to the law of native title.

On an ordinary approach to statutory interpretation, courts require very plain words to reveal a legislative intention to abrogate rights of private property. (114) Courts impose a strict construction where the interference with property rights is expropriation. If there is any doubt as to the way in which language should be construed, it should be construed in favour of the party who is to be dispropriated. (115)

The effect of these aspects of law in Australia applying to land generally (that is, land not held under native title by indigenous people) is that such title or ownership is not treated as extinguished (or expropriated, or acquired, or destroyed) unless that is, effectively, the only possibility. (116) The effect of the decision of the majority in the Full Court is to depart from the principle of "full respect" and to discriminate markedly between native title and other title in the adoption of a bundle of rights approach and the rejection of the possibility of suspension or qualification of native title rights and interests. The effect of the majority's decision is to disregard the different character of native title rights, which ought not be seen for these purposes as merely a bundle of severable rights, but rather as communal rights which derive from the distinct underlying religious or spiritual relationship of indigenous peoples with their country.

The consequence of applying a presumption against extinguishment is to seek to find a way in which native title could be reconciled with the interests created by statute. The negotiation of the contemporary legal relationship between Indigenous and non-Indigenous rights may involve co-existence, regulation or suspension rather than extinguishment. This approach is reflected in the decision of Justice North.

The law will recognise consequences on native title short of extinguishment, such as suspension of the enjoyment of some of the incidents dependent upon the holding of native title, in order to allow full scope for the enjoyment of the inconsistent rights or interests but permits native title to survive and permits the rights or interests dependent on holding native title to be enjoyed without interfering with countervailing rights or interests. (p331 ALR)

This can be contrasted to the approach of the majority who posit the inconsistency test in this way;

...a law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguished native title to the extent of the inconsistency, irrespective of the actual intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title. (p180 para 69)

The bundle of rights characterisation of native title coupled with an inconsistency test which results in the extinguishment of one or more native title rights whenever there is any inconsistency with the grant ensures that the accumulation of every incursion, large or small, will result in the complete erosion of native title.

The dynamic relationship between the common law and the legislature is set to be a long term one. It is my role to ensure that this relationship is one based on equality. In 1992 the High Court broke the inertia over Indigenous rights. Since then the issue has been high on the political agenda of successive governments. In this chapter I have made it clear that the role of the courts is instrumental in maintaining the momentum on native title. The common law is still the central plank on which the statutory definition of native title rests. Where the common law gives Indigenous culture a meaningful place within contemporary society then the standard of equality will form the benchmark against which a legislative response will be measured. Where however the common law reduces native title to an historic right that cannot be exercised or enforced within contemporary society then it is incumbent on the legislature to reset the standard in keeping with its international obligations.

Footnotes

1. Western Australia and Ors v Ward and Ors (2000) 170 ALR 159 (the 'Miriuwung Gagerrong case').

2. s47B NTA.

3. ibid, per Beaumont and von Doussa J.J., at 185, 189.

4. ibid, at 186 and 189.

5. ibid, at 188.

6. ibid, at 321.

7. ibid, at 180.

8. ibid, at 180.

9. ibid, at 184, 189-190.

10. ibid, at 189-190.

11. ibid, at 189-190.

12. ibid, per North J., at 328 and 353-Ţ Ward and Others (on behalf of the Miriuwung and Gajerrong People) and Others v State of Western Australia and Others; Federal Court of Australia, 159 ALR 483 (the Miriuwung Gajerrong case at first instance), per Lee J. at 507-508.

13. The Miriuwung Gajerrong case op cit, per North J., at 332-336, 336 and ų the Miriuwung Gajerrong case at first instance op cit, per Lee J., at 508.

14. The Miriuwung Gajerrong case op cit, per North J., at ň the Miriuwung Gajerrong case at first instance op cit, per Lee J., at 508.

15. The Miriuwung Gajerrong case op cit, per North J., at 328.

16. The Miriuwung Gajerrong case op cit, per North J., at 328-329, 348, 776, see generally North J.'s discussion of the precedent, at 342-ŝ the Miriuwung Gajerrong case at first instance op cit., per Lee J., at 500, 508,509.

17. See: Article 2, Universal Declaration of Human Rights; Article 2, International Covenant on Civil and Political Rights; Article 2 International Covenant on the Elimination of All Forms of Racial Discrimination; Article 2, Convention on the Rights of he Child; Article 2, International Covenant on Economic, Social and Cultural Rights and; Article 2, International Labour Organisation Convention No169 concerning Indigenous and Tribal Peoples in Independent Countries.

18. UN Doc E/CN 4/52 (1947), section V; this comment is discussed in Sarah Pritchard, 'Special Measures', in Race Discrimination Commissioner, The Racial Discrimination Act 1975: A Review, Canberra, 1995, pºWarwick McKean, Equality and Discrimination under International Law, Oxford, 1983, p¶ Australia, Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, February 2000, Sixteenth Report - Consistency of the Native title Amendment Act 1998 with Australia's International Obligations under the Convention on the Elimination of all forms of Discrimination (CERD) - Report of the Non-Government Members of the Parliamentary Joint Committee, Chapter 3, p114.

19 .Minority Schools in Albania (1935) PCIJ Ser A/B No 64, at 17.

20. ibid.

21. Sarah Prichard, Official Committee Hansard, 22 February 2000, p NT 66. These comments were made in the course of Dr. Pritchard's submission to the Joint Parliamentary Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund: Parliament of Australia, Inquiry into the Consistency of the Native title Amendment Act 1998 with Australia's International Obligations under the Convention on the Elimination of all forms of Discrimination (CERD), Commonwealth of Australia, Canberra 2000 (Herein the Joint Parliamentary Committee CERD Inquiry) Dr. Pritchard's comments were discussed in the Non-government Members Report at p117.

22. Committee on the Elimination of Racial Discrimination, General Recommendation XXIII (51) concerning Indigenous Peoples, CERD/C/51/Misc.13/Rev.4 (1997), paras 4-5. (Herein CERD General Recommendation 23).

23. Commonwealth of Australia, Written answers to the Committee on the Elimination of Racial Discrimination. Issue: Does Australia regard the Convention as requiring formal or substantive equality. See also Ms Leon, in Foundation for Aboriginal Islander Action (FAIRA), Transcript of Australia's appearance before the Human Rights Committee, 20-21 July 2000, 21 July 2000, FAIRA Brisbane 2000, www.faira.org.au/hrc/ , p19. The Commonwealth government expanded on this interpretation to the Human Rights Committee, when Australia's periodic report under the ICCPR was considered in July 2000. See: Summary record of the 1858 th meeting: Australia, UN Doc: CCPR/C/SR.1858, 28/7/2000. This is discussed in greater detail in Chapter 1.

24. Attorney-General's Department, Submission No 24, Part I, p quoted in the Joint Parliamentary Committee CERD Inquiry, op cit, p8.

25. ibid, para 4.

26. Daes, Erica-Irene, Final Report Indigenous Peoples and Their Relationship to Land, UN Doc E/ CN.4/Sub.2/2000/25.

27. Cobo M., Study of the Problem of Discrimination against Indigenous Populations, E/CN.4/ Sub.2/1986/7/Add.4.

28. Martinez, M., Study on treaties, agreements and other constructive arrangements between States and Indigenous populations, Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, UN Doc E/CN.4/Sub.2/1999/20.

29. ibid, para. 252.

30. Committee on the Elimination of Racial Discrimination, Decision 2(54) on Australia - Concluding observations/comments, 18 March 1999. UN Doc CERD/C/54/Misc.40/Rev.2. para. 3. (Herein CERD Decision 2(54)).

31. CERD General Recommendation 23, op cit, para 4.

32. Chief Ominayak and the Lubicon Lake Cree Band v Canada. Communication No 167/1984, Report of the Human Rights Committee, UN Doc A/45/40 (1990).

33. CERD Decision 2(54) para. 6.

34. ibid, para. 7.

35 Ms G. McDougall, Australian Country Rapporteur, Meeting of the Committee on the Elimination of all forms of Racial Discrimination - Report, https://www.natsils.org.au/ . html (19/3/99), pp4-5.

36. Prichard, S. op cit, p.NT 69.

37. CERD General Recommendation 23, op cit, para 5.

38. ibid, para 4.

39. (1999) UN doc. CCPR/C/79/Add.105.

40. Human Rights Committee, Consideration of Reports submitted under Article 40 - Concluding Observations of the Human Rights Committee - Australia, (69 th session), 28 th July 2000, UN Doc CCPR/CO/69/AUS, para 9 (Herein HRC Concluding Observations).

41. CERD General Recommendation 23, op cit, para 9.

42. CERD Decision 2(54), para 9.

43. Human Rights Committee, General Comment No 22 (1993), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev 4, 2000, paras 1 & 2. See also T van Boven, Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, UN Doc E/CN 4/Sub 2/1989/32 (1989), para E Odio Benito, Elimination of All Forms of Intolerance and of Discrimination Based on Grounds of Religion or Belief, UN Doc E/CN 4/ Sub 2/1987/26, para 13, reprinted United Nations Human Rights Study Series No 2, UN Sales No E.89.XIV.3 (1989); A Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices, UN Doc E/CN 4/Sub 2/200/Rev 1 at 1, UN Sales No 60.XIV.2 (1960) reprinted (1978) 11 New York University Journal of International Law and Policy at 227.

44. Odio Benito, ibid, para 19.

45. ibid, at 68. As to the characterisation of Aboriginal belief-systems as religions, see: M. Charlesworth, "Introduction" in M Charlesworth (Ed) Religious Business: Essays on Australian Aboriginal Spirituality, Cambridge University Press 1998 xiii at xv; W.E.H. Stanner, "Some Aspects of Aboriginal Religion" written 1976, reproduced in Charlesworth, ibid, at 1.

46. Mabo and Ors v Queensland (No 2) (1992) 175 CLR 1, per Brennan C.J. at 49-50 (quoting from the Privy Council decision, Amodu Tijani (98) (1921) 2 AC, at p403 per Viscount Haldane), 51-52, 9 per Deane and Gaudron J.J. at 87, 91, 109, t and per Dawson J. at 133, (Herein Mabo (No 2)).

47. ibid, at 185.

48. ibid, at 189.

49. The Miriuwung Gagerrong case, op cit, at 242.

50. R.S. French, "The Evolving Common Law of Native Title", paper delivered at University of Western Australia, 19 September 2000, at 12. On the potentially 'dramatic impact' of the majority's approach on the extent to which native title may have survived over current or former pastoral leases in Western Australia, see also D. Bennett S.G. Q.C., "Native Title and the Constitution", Native Title in the New Millennium Representative Bodies Legal Conference, Melbourne, 16-20 April 2000, at 20.

51. R.S. French, ibid.

52. ibid, p12, fn 97.

53. Yanner v Eaton (1999) 166 ALR 258.

54. Under the NTA mining leases are excluded from the categories of interests which extinguish native title: in relation to past acts ss 13A, 228, 231, 15(1)(d); in relation to future acts s 24MA.

55. K. Barnett, "Western Australia v Ward: One Step Forward and Two Steps Back: Native Title and the Bundle of Rights Analysis" (2000) 24 Melbourne University Law Review 462 at 474-477.

56. The Miriuwung Gagerrong case, op cit, per Beaumont and von Doussa J.J. at 188.

57. ibid, at189.

58. ibid, per North J. at 784.

59. ibid, at 784.

60. Mabo (No 2) op cit, per Brennan C.J. at 46.

61. The Wik decision, op cit, per Gummow J. at 180.

62. In re Southern Rhodesia (60) (1919) AC 211, per Lord Sumner, at pp233-234 - quoted in Mabo (No 2) op cit, by Brennan C.J. at 39.

63. Mabo (No 2) op cit, per Brennan C.J., at 40.

64. ibid, at 40.

65. (1998) 156 ALR 721 (Fejo).

66. (1999) 166 CLR 258 (Yanner).

67. Wik decision, op cit, per Kirby J. at 230.

68. A 'connection' based on continued acknowledgement and observance of traditional law and custom: see section 223 NTA; Mabo (No 2) op cit, per Brennan C.J., at F per Deane and Gaudron J.J. at n Yanner op cit, per Gleeson C.J., Gaudron, Kirby and Hayne J.J. at Ď the Miriuwung Gagerrong case at first instance op cit, per Lee J., at 500.

69. Mabo (No 2) op cit, per Brennan C.J., at 63.

70. Mabo (No 1) (1988) 166 CLR 186, per Brennan Toohey and Gaudron J.J. at Õ Mabo (No 2) op cit, per Brennan C.J., at @ per Deane and Gaudron J.J. at o Western Australia v Commonwealth (The Native Title Act Case) (1995) 183 CLR 373, per Brennan, Mason, Deane, Gaudron, Toohey McHugh, at Ʊ Wik decision op.cit.; Toohey at 123-124, ‚ per Gaudron J. at 155, 166, per Gummow J. at 193, ¹ and per Kirby J. at 247.

71. p65.

72. Mabo (No 2) op cit, per Brennan C.J., at 36.

73. ibid, per Brennan C.J., at 45.

74. ibid, per Brennan C.J., at 40.

75. ibid, per Brennan C.J., at 38-43 this was confirmed in The Native Title Act Case op cit, per Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh J.J. at 433.

76. p67.

77. Mabo (No 2) op cit, per Brennan C.J., at 41-43.

78. ibid, at 42.

79. ibid, at 42.

80. Dietrich v The Queen (1992) 177 CLR 292 at 320 per Brennan J.

81. The Miriuwung Gajerrong case, op cit, per Beaumont and von Douss J.J., at 188.

82. Mabo (No 2) op cit, per Brennan C.J., at 58.

83. ibid.

84. See: discussion in Mantziaris, Christos, and Martin, David, Native Title Corporations: a legal and anthropological analysis, The Federation Press, Sydney, 2000, Chapter 1 "Native Title: The Product of a Recognition Space".

85. [1919] A.C. 211 at pp233-234: quoted in Mabo (No 2) op cit, per Brennan J. at 39, 41, 55, : per Deane and Gaudron J.J. at S per Toohey J. at ¹ in The Native Title Act Case, op cit, per Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh J.J. at ư in Fejo, op cit, per Kirby J. at 132.

86. South West Africa Case (Second Phase) [1966] ICJ Rep 6, pp303-304, p305.

87. The Miriuwung Gagerrong case, op cit, at 188.

88. ibid, at 188.

89. ibid, at 188.

90. ibid, at 186.

91. p75.

92. Bartlett, R., Native Title in Australia, Butterworths, Australia, 2000, p184.

93. Sutton, P., Kinds of Rights in Country: The 'Incidents' of Aboriginal Native Title, forthcoming manuscript dated 24/6/1999, National Native Title Tribunal, Perth, 2000, cited in Martin and Mantziaris, op cit, p61.

94. ibid, p66.

95. Mabo (No 2) op cit, per Brennan C.J., at 36.

96. North J. in the Miriuwung Gagerrong case, op cit, at 784.

97. Mabo (No 2) op cit, per Brennan C.J., at 51.

98. p68.

99. Leroux v Brown (1852) 12 C.B. ̡ The Zollverein (1856) Swab.` The Annapolis (1861) Lush. ħ Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR ĵ Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes 7 th Ed, 1929, at 127.

100. Murray v Charming Betsy (1804) 2 Cranch 64, v also United States v Fisher (1805) 2 Cranch 390.

101. Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson J.J.

102. Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason C.J. and McHugh J.; also Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 534 per Gummow J.

103. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason C.J. and Deane J.; also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne J.J. Generally A. Simpson and G. Williams, "International Law and Constitutional Interpretation" (2000) 11 Public Law Review 205 at Ð J. Spigelman, "Access to Justice and Human Rights Treaties" (2000) 22 Sydney Law Review 141 at 149.

104. Mabo (No 2) op cit, per Brennan C.J. at @ per Deane and Gaudron J.J. at 82-83, o the Wik decision op cit, per Gaudron J. at 146-147, 154-› per Kirby J. at 247-û Toohey J. at 123- | The Native Title Act Case op cit, per Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh J.J. at 422-3.

105. Mabo (No 2) op cit, per Deane and Gaudron J.J. at o Wik decision op cit, per Toohey J. at 108, Gaudron J. at 146-7, 154-155, per Gummow J. at 166.

106. Mabo (No 2) op cit, per Brennan D Wik decision op cit, per Toohey J. at 126 [citing Delgamuukw (1993) 104 DLR (4 th ) 470 at 668]; per Gummow J. at 185-º per Kirby J. at 249.

107. Wik decision op cit, per Toohey J. at 126 [citing Delgamuukw (1993) 104 DLR (4 th ) 470 at 668].

108. Lane's Commentary on the Australian Constitution (2 nd Ed) at 316-318.

109. Bank of NSW v The Commonwealth (1948) 76 CLR 1 at ŝ Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513, at 530, 633-ɺ Minister of State for the Army v Dalziel (1994) 68 CLR 261 at Ğ also Commonwealth of Australia v State of Western Australia (1999) 196 CLR 392 at 433 per Gummow J., at 480, 485 per Hayne J.

110. Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397, per Stephen J. at 415.

111. Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317 at ŋ also the Miriuwung Gajerrong case, op cit, at 348.

112. The Miriuwung Gajerrong case, op cit, per North J., paras [684], [784].

113. The Miriuwung Gajerrong case, op cit, per North J., at 358, 360.

114. Bennion, Statutory Interpretation, 3 rd Ed, section Ė Clissold v Perry (1904) 1 CLR 363 at ŵ Greville v Williams (1906) 4 CLR @ Wade v New South Wales Rutile Mining Co Pty Ltd (1970) 121 CLR 177 at 181, 182.

115. Methuen-Campbell v Walters [1979] QB 525 at Ȟ Stile Hall Properties Ltd v Gooch [1980] 1 WLR 62 at A Chilton v Telford Development Corpn [1987] 1 WLR ͨ also Mabo (No 2) op cit, at o the Wik decision at 155.

116. Compare New Zealand jurisprudence which maintains in relation to extinguishment the equal status of native title with other interests: Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 at 24.