CHAPTER 2
Native Title Rights
2.1 In Mabo (No2) the High Court confirmed that the Meriam people were
entitled to the possession, occupation, use and enjoyment of the lands
of the Murray Islands. It was an important aspect of the judgement that
the entitlement of the Indigenous inhabitants was recognised in accordance
with their laws or customs.
2.2 The discovery of native title in Australia, then, will depend in
part on ascertaining the laws or customs of native title holders. From
Mabo (No2), however, it is clear that native title can include:
- possession;
- occupation;
- use; and
- enjoyment.
2.3 The Aboriginal and Torres Strait Islander Social Justice Commissioner,
Mr Michael Dodson, has reported that native title is a unique, sui generis,
entitlement to land. [1] Mr Dodson
went on to state:
the right to control access to and activities on traditional
estates is a consistent feature of Australian Indigenous Law. [2]
2.4 Whether the right to control access is part of a particular Indigenous
group's tradition is a case by case matter for determination. It is also
a case by case question what the nature of the right is; there remains
the possibility that the right could vary significantly across Indigenous
groups.
2.5 Similarly, it remains an important question for each case where this
right has been identified and characterised, whether it has been extinguished.
For example, if it remains an open question following the imminent Wik
decision whether native title is extinguished on pastoral leases containing
reservations in favour of Aboriginal access, it will be a pivotal issue
whether a 'coexisting' native title could include the right to control
access to that country. The likelihood is that, as a native title right,
the right to control access would not survive the issuing of pastoral
leases, even those containing reservations in favour of Aboriginal access:
it is difficult to consider how native title holders could control access
on a pastoral lease where they hold only a coexisting native title. Notably,
in an opinion prepared by the Attorney-General's Department and the Department
of the Prime Minister and Cabinet ('the Departments'), the view is put
that:
even if control over access by others is a part of the traditions
and customs which provide the basis for native title, it has not carried
over to control of entry by others under authority of a Crown grant
which, at common law, would extinguish or impair the native title. To
hold otherwise would be to deny the full effect to the Crown grant.
[3]
2.6 Further, in their submission the Commonwealth Departments have advised
that, while there may be a traditional right about access that could be
characterised as a right to negotiate, it is unlikely to be the 'right
to negotiate' (RTN) provided by the NTA. [4]
The Departments have submitted that the right to negotiate is a wholly
statutory right which exists independently of the recognition afforded
by the common law. [5] One question
confronting the Committee in considering this matter for its sixth report
was the following:
- If there could be a right to negotiate held as a native title
right, protected (even inadvertently) under the right to negotiate
provisions of the NTA, to what extent should the right to negotiate
be modified or even removed (extinguished)?
2.7 The Committee's sixth report did not express an opinion whether or
not the right to negotiate is a native title right. However, the Committee
considers that the right to negotiate is a valuable asset to Indigenous
people and should not be withdrawn or modified significantly without sound
reason. The Committee noted (sixth report, para. 5.11) that the right
to negotiate would be preserved even where exercised to a limited extent
(that is, not necessarily at each stage of a development). Where it was
a native title right, the right could be utilised.
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Footnotes
[1] sui generis: the only one of its
kind.
[2] Native Title Report July 1995 - June
1996, p.18.
[3] Submission No. 82, 5 November 1996, p.5;
this submission is reproduced as Appendix 1 to this report.
[4] Evidence, p.3627.
[5] Submission No 82, op.cit., p.5.
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