Indigenous Law Bulletin
By Phillipa Hetherton
2001 will be a crucial year for native title. In the past three years amendments to the Native Title Act 1993 (Cth) (‘the NTA’) and consequential state legislation have greatly reduced the degree of protection that native title can provide for Indigenous peoples’ land rights. Nevertheless, the NTA and state legislation have only partly codified native title law. Important questions are left for the Courts to determine. In essence, the Courts must determine the character of the Indigenous legal interests in land that can be ‘recognised’ as native title and the circumstances in which those interests are held to have been extinguished. To date, High Court jurisprudence regarding these issues has only incompletely answered these questions.
Next year three major native title cases will be decided by the High Court:
These cases raise issues central to the meaning and strength of native title and the circumstances in which it is held to have been extinguished. It is likely that the High Court’s decisions in these cases will substantially resolve these issues and will be influential, if not decisive, for the potential of native title law to protect Indigenous peoples’ claims to lands and seas. This article focuses on the Miriuwung-Gajerrong case.
The Miriuwung Gajerrong case is significant because for the first time since Mabo (No 2) the High Court will determine the manner and extent of native title extinguishment concurrently with a consideration of the full facts of the nature of the native title claimed over land. The Court’s construction of the relationship between the nature of the native title and the mode of its extinguishment will determine the strength of the interest in land protected as native title and consequently the degree of protection of Indigenous peoples’ connection with their traditional lands offered by native title law.
The construction of this relationship has been crystallised by the Federal Court decisions in the Miriuwung Gajerrong case into a choice between two sharply defined alternatives: native title as a ‘bundle of rights’ or native title as a ‘title to land’. These characterisations of the native title right have differing consequences for the mode and extent of extinguishment of native title.
The majority decision of the full Federal Court characterised native title as a ‘bundle of rights’. This approach separates ‘purely religious or spiritual relationships with land’ from ‘actual physical use and enjoyment of the land’, and recognises only the ‘physical’ element of the relationship. Native title is not understood as a unitary form of property ownership but merely as the aggregate of numerous minor rights to engage in ‘physical activities’ on the land.
By contrast, the ‘title to land’ approach (described by Justice Lee at first instance and Justice North dissenting from the Full Court determination) recognises the interconnectedness of Indigenous peoples’ ‘spiritual’ and ‘physical’ relationships with land. Native title is characterised as an holistic right to the land itself. Rights to ‘engage in physical activities’ on the land do not constitute the entirety of common law recognition of native title, but are instances of the exercise of native title and are ‘pendant’ on native title.
As a consequence of characterising native title as a ‘bundle of rights’, the majority of the full Federal Court for the first time clearly articulated an extinguishment regime that encompasses the partial and progressive extinguishment of native title over time. The characterisation of native title as a separable ‘bundle’ of individual and unrelated rights allows for the removal of individual rights from the ‘bundle’ by Crown acts that are inconsistent with that particular exercise of native title. This ‘bundle’ may then be progressively reduced by the cumulative effect of a succession of different grants. Over time, this process may lead to such extensive extinguishment that ‘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'. The result of this approach is that native title is extremely susceptible to every small incursion and may only ever decrease in strength.
In contrast, the ‘title to land’ approach precludes partial extinguishment of native title. The ‘title to land’ approach builds on the common law’s accommodation of co-existing but competing property rights. Crown authorisation of acts which are inconsistent with a particular exercise of native title may thus co-exist with native title and will not necessarily extinguish native title. Instead, ‘inconsistency’ may result in either extinguishment of the entire native title interest or impairment of native title by impinging on the rights ‘parasitic’ to native title. The legal effect of an inconsistent act depends on the degree of inconsistency. Inconsistency results in extinguishment of native title only where the inconsistency reflects an ‘... intention of the Crown to remove all connection of the aboriginal people from the land in question’. This intention will only be held to exist where the inconsistent act is:
Where inconsistency is less than ‘fundamental’ the impairment of the exercise of native title rights will result in suspension or regulation of those rights for the duration of the inconsistency but the underlying title will remain.
The Miriuwung Gajerrong claim area is a large one and many different interests in land have been granted throughout since the acquisition of sovereignty. The decisions in the Miriuwung Gajerrong case have involved detailed application of general principles of native title law (of both approaches outlined above) to the extinguishing effects of these varied kinds of past acts. Consequently, the High Court determination, as well as deciding the questions of general principle, will provide important guidance on the extinguishing, ‘suspending’ or ‘regulating’ effects of some of the following kinds of past acts:
The Court’s construction of the relationship between the nature of the native title and the mode of its extinguishment will determine the effect of all these kinds of incursions on a native title interest in land. It will determine whether native title is a strong or weak interest and will ultimately determine whether native title law will provide only minor, easily displaced rights for Indigenous peoples or whether it will provide real protection to Indigenous peoples’ continuing connection with their traditional lands.
Phillipa Hetherton is a lawyer working in native title law and policy.
 Western Australia and Ors v Ward and Ors (2000) 179 ALR 159. (Herein ‘Ward’)
 Commonwealth of Australia v Yarmirr  FCA 1668; (1999) 168 ALR 426. This case is also known as the Croker Island case.
 Anderson (for and on behalf of the Euahlay-I Dixon Clan) v Wilson and Ors  FCA 394; (2000) 171 ALR 705.
 Mabo and Ors v Queensland (No 2)  HCA 23; (1992) 175 CLR 1.
 Compare with Wik, where only the legal question of whether a pastoral lease necessarily extinguished native title was put the Court; Yannerin which the High Court considered the effect of s 211 of the NTAand in Fejo the Court’s decision was based on the reasoning that a grant of freehold would always extinguish native title and did not involve a consideration of the relationship between the nature of the native title interest recognised and the effect of acts over native title lands where the interest was less than freehold and consequently might or might not effect extinguishment. The Croker Island case, which will be heard before the Miruwung Gajerrong case, relates entirely to sea rights.
 Ward,above n 1, per Beaumont and von Doussa JJ at 189.
 Ibid 188.
 Ibid 189.
 Ward and Others (on behalf of the Miriuwung and Gajerrong People) and Others v State of Western Australia and Others  FCA 1478; 159 ALR 483.
 Ward, above n 1, per Beaumont and von Doussa JJ at 189.
 Ibid per North J at 328.