A Critique of the Development in the High Court’s Jurisprudential Approach: Extinguishment of Native Title and the Principle of Equality before the Law

Introduction

One of the most challenging aspects of the law of native title is its historical underpinnings in the development of international jurisprudence of European colonial powers regarding settlement, conquest and cession,[1] which asserts and legitimises the sovereign power assumed by the Crown to be able to extinguish native title rights and interests,[2] herein after generally referred to as ‘traditional title’ and ‘traditional title rights and interests’, which seems a less derogatory way of referring to it.[3] While repudiating the legal fiction of terra nullius and holding that the Crown’s radical title acquired upon settlement was burdened by the prior traditional title rights and interests, the High Court maintained that tradition title could be extinguished by valid legislative and executive acts.[4] I will argue that, irrespective of which legal test for extinguishment is applied, while the protection of traditional title appeared to be grounded upon the application of the principles of equality, ultimately, because traditional title was deemed to have a “unique status” – due to its source, not from Crown grant, but traditional law and custom – which rendered it uniquely vulnerable to extinguishment, the fact that it is not being protected to the same degree by the universal presumption against Parliament intending to extinguish private property rights, evinces a fundamental rejection of the principles of equality.[5]   

This essay will begin by critically examining the different approaches to equality in Mabo v Queensland (Mabo (No 1)),[6] contrasting the narrower, literal approach of Wilson and Dawson JJ with the broader approach of Brennan, Gaudron, Toohey and Deane JJ. I will explore how these distinctive approaches mirror the tension in international law between the protection of minority rights versus distinctive collective rights, such as the right to self-determination for indigenous peoples.[7] Having laid this foundation, I will examine the underpinnings of the “clear and plain intention” test in Mabo (No 2)[8] in the common law presumption regarding Parliament’s interference with private property rights.[9] I will discuss some of the laws regarding compulsory acquisition and its relationship to extinguishment of native title. Following from this, I will explore the shift in jurisprudential approach towards the “inconsistency of incidents” test,[10] and the later shift back to the “clear and plain intention” test[11] – critically examining the connection between these different approaches and the application (or repudiation) of the principles of equality.[12] Finally, I will examine the critical opinions of the extinguishment of native title in Australian law,[13] the jurisprudence of regret and genuine acknowledgement of difference in developing a pluralistic jurisprudence.[14]

Defining the “principles of equality” – Mabo (No 1)

One of the primary issues raised in Mabo (No 1)[15] was how the “principles of equality” embodied in the International Convention on the Elimination of All Forms of Racial Discrimination (‘the Convention’),[16] as implemented into Australian domestic law by the Racial Discrimination Act 1975 (Cth) (‘RDA’), applied in the protection of native title property interests as compared to property interests originally granted by the Crown. The Queensland State government had attempted to retrospectively validate the extinguishment of the traditional rights of the Meriam People in the Murray Islands by the Queensland Coast Islands Declaratory Act 1985 (Qld). One key argument presented by the plaintiffs involved inconsistency between this Act and the Commonwealth RDA, in particular s 10 of the Act. This section provides for the protection of the equality of rights as between one race and another, whether one race was denied rights or had limited rights as compared to another race. The wording of the section formed the basis for two distinctive approaches between the majority (Brennan, Toohey and Gaudron JJ, together with Deane J)[17] and the minority of the Court (Wilson J and Dawson J,[18] with Mason CJ reserving his judgment on this issue).[19]

The approach of the minority was an example of a very literal and legalistic construction of the Act (and the Convention). Wilson J saw the plaintiff’s contention as standing or falling upon their ability to demonstrate that “another race” retained the rights which were allegedly being deprived from their “race”, stating:

[I]f there are no other persons of another race who are shown to enjoy rights of the same kind as those of which the plaintiffs have been deprived, then it will be impossible to find a foothold for s 10(1) of the Commonwealth Act.[20]

Seeing as the particular rights being asserted by the Meriam People were unique to them, Wilson J’s literal and narrow construction of “equality before the law” meant that, in his eyes, the Meriam People could not rely upon the Act and the Convention to protect their distinctive cultural land rights. While the Convention allowed “special measures” to be legislated to protect distinctive rights, these provisions could not be argued in order to protect these same rights if the State saw fit to derogate from them, as long as the end result was formal equality between the Meriam People and other Australians. Dawson J asserted a similar position, going further to assert that nothing about the Declaratory Act expressly limited rights on the basis of race. Thus, Wilson and Dawson JJ, together with Mason CJ, would have overruled the plaintiff’s demurrer.

In contrast to this narrow construction, Brennan, Toohey and Gaudron JJ interpreted the protected rights as being broader than legal rights (including human rights as recognised in international law,[21] and saw inequality at work in the Meriam People’s capacity to own and inherit property under their traditional laws and customs as being equally protected as compared with rights to own and inherit property by Australians generally under Australian law. Thus, they saw the protection of s 10 of the RDAas applying to their case. In a similar vein, Deane J saw the protected rights as ‘moral entitlements’ as opposed to mere ‘legal rights’, and saw the Convention as concerned with the ‘practical operation and effect’ of laws (their ‘substance’) as opposed to mere ‘form’.[22] Because the law, in its operation and effect, was to extinguish the traditional rights of the Meriam People while leaving other rights undisturbed, Deane J saw the inconsistency between the Queensland and Commonwealth Acts. Thus, the majority allowed the demurrer and declared the Queensland Act invalid.[23]

The different approaches to the “principles of equality” in Mabo (No 1) illustrate one of the ongoing challenging tensions in international law jurisprudence, between formal equality based upon liberal principles of individual rights and autonomy and the protection of distinctive collective rights, such as cultural rights, land rights and self-determination.[24] The ongoing development of native title law in Australia, including the Ten-Point Plan and the Howard Government’s 1998 Amendments, demonstrate this tension on the local level, continuing similar attitudes which underpinned earlier policies of assimilation.[25]

“Clear and Plain Intention” Test in Mabo (No 2)

In turning to discuss the “clear and plain intention to extinguish” test developed in Mabo (No 2), the previous discussion of different approaches to equality must be kept in mind. Whereas Mabo (No 1) discussed the traditional rights in the abstract, and whether or not State laws which purported to extinguish them would be inconsistent with Commonwealth anti-discrimination law, Mabo (No 2) sought to establish whether the asserted traditional rights existed or not, and whether valid legislative or execution acts had extinguished the Meriam People’s traditional title. The argument regarding extinguishment was grounded in the analogous common-law presumption of statutory interpretation, that Parliament did not intend to derogate from private property rights without clear and unambiguous language to that effect.[26] Thus, by analogy to statutory interpretation regarding alleged legislative or executive acts which constituted compulsory acquisition of property (in particular without compensation), similar canons of construction could be deemed to apply to the extinguishment of native title. 

Although the Australian Constitution empowers the Commonwealth Parliament to compulsorily acquire property only on just terms,[27] prior to statutory institution of similar limitations by State Governments, the constitutional power of State Parliaments to compulsorily acquire property was not deemed to be limited in the same way.[28] However, every State has legislation related to compensation for exercise of their power to compulsorily acquire property, with the Queensland[29] and New South Wales Acts[30] expressly deeming extinguishment of native title to be analogous to compulsory acquisition. Also, in the South Australian[31] and Western Australian law,[32] their Native Title legislation includes provisions relating to their Land Acquisition Acts. Thus, even legislatively, extinguishment of native title interests appears to be understood to be a species of compulsory acquisition of property by the Crown.

However, in turning to Mabo (No 2),[33] while six out of seven Justices accepted that the common law recognises traditional title based upon traditional laws and customs and an ongoing connection to traditional lands and waters, there was a distinction between the majority understanding (led by Brennan J,[34] with Mason CJ, McHugh and Dawson JJ in agreement)[35] and the minority understanding (Deane and Gaudron JJ,[36] with Toohey J in agreement)[37] as to the right to compensation for the extinguishment of native title by the Crown. I would argue that the primary distinction was a departure from the “principles of equality” by assigning a “unique status” to traditional title rights[38] – in that they did not flow from the Crown – which lent, in their opinion, to a greater vulnerability to extinguishment than private property rights flowing from grant by the Crown. (This contrasts with the ‘full respect’ approach evident in some cases from Canada and the Privy Council.)[39] Thus, even though both approaches applied the “clear and plain intention” test in discussing extinguishment, the majority dismissed the full force of the principle of equality in holding that the common law did not regard native title holders being entitled to compensation for their property interests being extinguished by the Crown.

Shift towards the “Inconsistency of Incidence” Test – Wik, Fejo and Ward

In considering the shift away from the “clear and plain intention to extinguish” test established in Mabo (No 2), especially as clearly declared in Western Australia v Ward,[40] some consideration must be given to the earlier developments in Wik Peoples v Queensland[41] and Fejo v Northern Territory,[42] where the complexity of dealing with Crown grants of fee simple and pastoral/mining leases caused uncertainty in how the Court would approach the issue of extinguishment. Interestingly, in the Preamble of the Native Title Act 1993 (Cth),[43] the Parliament explained their understanding of the High Court’s decision in Mabo (No 2) that native title was extinguished by grants of interests in land inconsistent with traditional title, which was drawn from the language of Brennan J in Mabo (No 2).[44] This language was taken up in Wik,[45] in dealing with executive acts (in contrast to legislative acts which still required the “clear and plain intention”), where Kirby J, in particular, developed what he called the “inconsistency of incidence” test.[46] This latter test developed in Wik was applied in Fejo,[47] where it was specifically mentioned that, based upon a few statements of Brennan J and Deane and Gaudron JJ,[48] that it was the inconsistency of rights granted by fee simple that extinguished traditional title, not any imputed intention of the legislature.

The primary judge in the Ward case[49] applied the stricter “clear and plain intention” test, in particular emphasising the expression of ‘full respect’ shown to traditional title in Canadian cases.[50] This approach was critiqued and overruled in the Full Federal Court, [51] affirming the approach in Wik[52] and Fejo,[53] and once again emphasised the dicta regarding inconsistency in Mabo.[54] Although the outcome was reversed by the High Court, the approach to extinguishment in the Full Federal Court was upheld by the High Court, demonstrating a indirect repudiation of the earlier “clear and plain intention” test (under the name of the “adverse dominion” test applied by Lee J as primary judge).[55] However, considering the concurrent development of the understanding of native title rights and interests as a “bundle of rights”[56] which could be partially or wholly extinguished,[57] could arguably be considered as an ongoing grappling of the Court with the principles of equality, seeking to treat the presumption against extinguishment of private property rights (including traditional title rights and interests) in a less legalistic, more purposive way, in order to attempt to protect them.

Shift Back towards “Clear and Plain Intention” test in Akiba and after

The next time that the High Court had to deal with extinguishment of native title were Akiba v Commonwealth[58] and Karpany v Dietman,[59] both related to the impact of fisheries legislation on traditional fishing rights on the basis of traditional title. In the lower courts in Akiba’s case, the courts turned to the earlier jurisprudence in Mabo (No 1), (No 2) and Wik,[60] with the dispute instead being upon the outcome of the application of the test (with the primary judge determining that the fisheries legislation did not evince a clear and plain intention, whereas Keane CJ and Dowsett held that it did evince the required intention to extinguish).

On appeal, the High Court was divided in relation to which test to apply, with Hayne, Kiefel and Bell JJ relying more upon the requirement of inconsistency in rights,[61] whereas French CJ and Crennan J clearly affirming the lower courts application of the “clear and plain intention” test.[62] In a similar vein, the Karpany case in the Full Supreme Court of South Australia,[63] and the High Court on appeal, affirmed unanimously the “clear and plain intention” test, with the standard of inconsistency of rights being part of evincing the intention.[64] The ongoing development of discussing the relationship between the inconsistency of rights granted and the clear and plain intention to extinguish are evident in the cases of Western Australia v Brown[65] and Queensland v Congoo.[66]

Critique of the Extinguishment of Native Title in Law

In spite of shifting jurisprudence,[67] in terms of discussing the applicability of the “principles of equality” to the law of native title – and extinguishment of native title in particular – it is relevant to go back to the “unique status” with which traditional title has been characterised, as a creature of traditional law and custom rather than of the common law or statute, and how this renders native title to a unique vulnerability which private property interests by Crown grant do not suffer with. Thus, although the “clear and plain intention” test has been developed by analogy from the common law presumption of statutory interpretation concerning Parliamentary interference with private rights, it has not been applied in giving “full respect” to traditional title.[68] Some scholars of Indigenous heritage see the supposed “recognition” of traditional title – only to extinguish it by unquestioned sovereign acts – is an ongoing experience of colonialism and dispossession.[69]

The question must be asked: Is there the possibility of a genuine jurisprudence of regret,[70] whereby the courts, legislature, and ultimately, the Australian people, can genuinely end the centuries of denial?[71] Is there a way of reconciling the two legal systems – Anglo-Australian and customary – by respecting the difference rather than forcing traditional land interests into the mould of Western tradition?[72] Is there a way that the law of “native title” could be reformulated through mutual discussion and dialogue between Australian governments and traditional title holders in order to genuinely support the assertion of the right of self-determination for the First Nations of this continent?[73]

Conclusion

Recognition of traditional title rights and interests must be viewed in the broader context of the First Nations of this continent exercising their collective rights to self-determination. The doorway to legal recognition of traditional title in Australia was enabled through the application of international human rights standards, such as the International Convention on the Elimination of All Forms of Racial Discrimination, as incorporated into domestic federal law through the Racial Discrimination Act 1975. With the rejection of the legal fiction of terra nullius, and through consideration of jurisprudence developed previously in other common law nations (such as Canada, United States, New Zealand), some recognition was given for the continued existence of traditional title in this land. While the legal doctrine of extinguishment of native title was developed, by analogy, from the common law presumption regarding the intention of Parliament to not interfere with private property rights without clear and unambiguous expression, by refusing to give “full respect” to traditional title, and instead ascribing it a “unique status” – ultimately, beneath that of private property rights flowing from Crown grant – the full implications of equality before the law have never been realised.

Bibliography

A Articles/Books/Reports

Bartlett, Richard, Native Title in Australia (3rd edition, LexisNexis, 2015)

Bartlett, Richard, ‘The Requirement of a Clear and Plain Intention and its Relationship to Equality and the Inconsistency Test in the Extinguishment of Native Title: Akiba, Brown and Congoo’ (2015) 34(2) Australian Resources and Energy Law Journal 109

Grotius, Hugo (translated by AC Campbell), On the Law of War and Peace [De Jure Belli ac Pacis] (Batoche Books, 2001 [1625])

Hepburn, Samantha, ‘Statutory Interpretation and Native Title Extinguishment: Expanding Constructional Choices’ (2015) 38(2) University of New South Wales Law Journal 587

Hewitt, Anne, ‘Commercial Exploitation of Native Title Rights – A Possible Tool in the Quest for Substantive Equality for Indigenous Australians?’ (2011) 32(2) Adelaide Law Review 227

Jenowein, Diego, ‘Native Title in Australian Law: Making Space for Self-determination’ (2019) Bristol Law Review 10

Jovanovic, Miodrag, ‘Collective rights as a distinctive legal concept’ in Collective Rights: A Legal Theory (Cambridge University Press, 2012) 110

Kariyawasam, Kanchana,  ‘Native Title Litigation in Australia: Does the Judiciary Deliver on the Principal Objectives Defined by Mabo’ (2013) 14 Asia-Pacific Journal on Human Rights and the Law 3

Keon-Cohen, Bryan, ‘From Euphoria to Extinguishment to Co-existence?’ (2017) 23 James Cook University Law Review 9

Kierans, Christopher, ‘Aboriginal Land Rights: Two Centuries of Denial’ (2012) 2 King’s Inn Student Law Review 103

Kwaymullina, Ambellin, ‘Aboriginal Nations, the Australian nation-state and Indigenous international legal traditions’ in Irene Watson (ed), Indigenous Peoples as Subjects of International Law (Taylor & Francis Group, 2018) 5

Lopez, Carlos Scott, ‘Reformulating Native Title in Mabo’s Wake: Aboriginal Sovereignty and Reconciliation in Post-Centenary Australia’ (2003) 11(1) Tulsa Journal of Comparative and International Law 21

Meagher, Dan, ‘Comments: Native Title Extinguishment Law in the High Court’ (2014) 25 Public Law Review 8

Motha, Stewart, ‘Mabo: Encountering the Epistemic Limit of the Recognition of “Difference”’ (1998) 7(1) Griffith Law Review 79

Mykyta, Sky, ‘Losing Sight of the Big Picture: The Narrowing of Native Title in Australia’ (2004) 36(1) Ottawa Law Review 93

Seipp, David J, ‘The Concept of Property in the Early Common Law’ (1994) 12(1) American Society for Legal History 29

Strelein, Lisa, Compromised Jurisprudence: Native title cases since Mabo (2nd edition, Aboriginal Studies Press, 2009)

Tockman, Jason, ‘Eliding consent in extractivist states: Bolivia, Canada, and the UN Declaration on the Rights of Indigenous Peoples’ (2018) 22(3) The International Journal of Human Rights 325

Watson, Irene, Aboriginal Peoples, Colonialism and International Law: Raw Law (Taylor & Francis Group, 2015)

Webb, Raelene, ‘The Birthplace of Native Title – From Mabo to Akiba’ (2017) 23 James Cook University Law Review 31

Webber, Jeremy, ‘The Jurisprudence of Regret: The Search for Standards of Justice in Mabo’ (1995) 17 Sydney Law Review 5

Wiessner, Siegfried, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Journal 57

Young, Simon, ‘The Increments of Justice: Exploring the Outer Reach of Akiba’s Edge Towards Native Title “Ownership”’ (2019) 42(2) University of New South Wales Law Journal 825

B Cases

Adeyinka Oyekan v Adele [1957] 1 WLR 876

Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v Queensland (No 2) (2010) 204 FCR 1(FCA)

Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209 (‘Akiba HC’)

Attorney-General v Horner (1884) 14 QBD 245

Brown (on behalf of the Ngarla People) v Western Australia (No 2) (2010) 268 ALR 149

Brown (on behalf of the Ngarla People) v Western Australia (2012) 208 FCR 505

Calder v Attorney-General (British Columbia) (1973) 34 DLR (3d) 145

Central Control Board (Liquor Traffic) v Canon Brewery [1919] AC 744

Commissioner of Public Works (Cape Colony) v Logan (1903) AC 355

Commonwealth v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group (2012) 204 FCR 260 (FCAFC)

Commonwealth v Hazeldell (1918) 25 CLR 552

Congoo (on behalf of the Bar-Barrum People) (No 4) v Queensland [2014] FCAFC 9

Delgamuukw v British Columbia (1991) 79 DLR (4th) 185

Dietman v Karpany (2012) 112 SASR 514

Fejo v Northern Territory (1998) 195 CLR 96 (‘Fejo’)

Grace Brothers Pty Ltd v Commonwealth (1946) 72 CLR 269

Karpany v Dietman (2013) 252 CLR 507 (‘Karpany’)

Mabo v Queensland (1988) 166 CLR 186 (‘Mabo (No 1)’)

Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo (No 2)’)

State of Queensland v Congoo (2015) 256 CLR 239

Ward v Western Australia (1998) 159 ALR 483 (FCA)

Western Australia v Brown (2014) 253 CLR 507

Western Australia v Ward (2000) 99 FCR 316 (FCAFC)

Western Australia v Ward (2002) 213 CLR 1 (‘Ward HC’)

Western Counties Railway Co v Windsor and Annapolis Railway Co (1882) 7 App Cas 178

Wik Peoples v Queensland (1996) 187 CLR 1 (‘Wik’)

C Legislation

Acquisition of Land Act 1967 (Qld)

Australian Constitution 1901

Land Acquisition Act 1969 (SA)

Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Land Administration Act 1997 (WA)

Native Title Act 1993 (Cth) (‘NTA’)

Native Title (New South Wales) Act 1994 (NSW)

Native Title (Queensland) Act 1993 (Qld)

Native Title (South Australia) Act 1994 (SA)

Queensland Coast Islands Declaratory Act 1985 (Qld)

Racial Discrimination Act 1975 (Cth) (‘RDA’)

Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)

D Treaties

International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969)

United Nations Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/295, adopted by the General Assembly 2 October 2007


[1] Hugo Grotius (translated by AC Campbell), On the Law of War and Peace [De Jure Belli ac Pacis] (Batoche Books, 2001 [1625]).

[2] Native Title Act 1993 (Cth) (‘NTA’) s 11.

[3] A similar observation was noted by Kirby J in one of the cases on native title.

[4] Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo (No 2)’).

[5] David J Seipp, ‘The Concept of Property in the Early Common Law’ (1994) 12(1) American Society for Legal History 29.

[6] Mabo v Queensland (1988) 166 CLR 186 (‘Mabo (No 1)’).

[7] Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Journal 57; Miodrag Jovanovic, ‘Collective rights as a distinctive legal concept’ in Collective Rights: A Legal Theory (Cambridge University Press, 2012) 110; Jason Tockman, ‘Eliding consent in extractivist states: Bolivia, Canada, and the UN Declaration on the Rights of Indigenous Peoples’ (2018) 22(3) The International Journal of Human Rights 325; United Nations Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/295, adopted by the General Assembly 2 October 2007.

[8] Mabo (No 2) (n 4).

[9] Samantha Hepburn, ‘Statutory Interpretation and Native Title Extinguishment: Expanding Constructional Choices’ (2015) 38(2) University of New South Wales Law Journal 587.

[10] Wik Peoples v Queensland (1996) 187 CLR 1 (‘Wik’); Fejo v Northern Territory (1998) 195 CLR 96 (‘Fejo’); Western Australia v Ward (2002) 213 CLR 1 (‘Ward HC’).

[11] Simon Young, ‘The Increments of Justice: Exploring the Outer Reach of Akiba’s Edge Towards Native Title “Ownership”’ (2019) 42(2) University of New South Wales Law Journal 825; Bryan Keon-Cohen, ‘From Euphoria to Extinguishment to Co-existence?’ (2017) 23 James Cook University Law Review 9; Anne Hewitt, ‘Commercial Exploitation of Native Title Rights – A Possible Tool in the Quest for Substantive Equality for Indigenous Australians?’ (2011) 32(2) Adelaide Law Review 227.

[12] Richard Bartlett, Native Title in Australia (3rd edition, LexisNexis, 2015); Richard Bartlett, ‘The Requirement of a Clear and Plain Intention and its Relationship to Equality and the Inconsistency Test in the Extinguishment of Native Title: Akiba, Brown and Congoo’ (2015) 34(2) Australian Resources and Energy Law Journal 109; Raelene Webb, ‘The Birthplace of Native Title – From Mabo to Akiba’ (2017) 23 James Cook University Law Review 31; Dan Meagher, ‘Comments: Native Title Extinguishment Law in the High Court’ (2014) 25 Public Law Review 8; Kanchana Kariyawasam, ‘Native Title Litigation in Australia: Does the Judiciary Deliver on the Principal Objectives Defined by Mabo’ (2013) 14 Asia-Pacific Journal on Human Rights and the Law 3.

[13] Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Taylor & Francis Group, 2015); Ambellin Kwaymullina, ‘Aboriginal Nations, the Australian nation-state and Indigenous international legal traditions’ in Irene Watson (ed), Indigenous Peoples as Subjects of International Law (Taylor & Francis Group, 2018) 5.

[14] Jeremy Webber, ‘The Jurisprudence of Regret: The Search for Standards of Justice in Mabo’ (1995) 17 Sydney Law Review 5; Lisa Strelein, Compromised Jurisprudence: Native title cases since Mabo (2nd edition, Aboriginal Studies Press, 2009); Sky Mykyta, ‘Losing Sight of the Big Picture: The Narrowing of Native Title in Australia’ (2004) 36(1) Ottawa Law Review 93; Stewart Motha, ‘Mabo: Encountering the Epistemic Limit of the Recognition of “Difference”’ (1998) 7(1) Griffith Law Review 79; Carlos Scott Lopez, ‘Reformulating Native Title in Mabo’s Wake: Aboriginal Sovereignty and Reconciliation in Post-Centenary Australia’ (2003) 11(1) Tulsa Journal of Comparative and International Law 21; Christopher Kierans, ‘Aboriginal Land Rights: Two Centuries of Denial’ (2012) 2 King’s Inn Student Law Review 103; Diego Jenowein, ‘Native Title in Australian Law: Making Space for Self-determination’ (2019) Bristol Law Review 10.

[15] Mabo (No 1) (n 6).

[16] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

[17] Mabo (No 1) (n 6),216-219 (Brennan, Toohey and Gaudron JJ), 229-233 (Deane J).

[18] Ibid, 204-208 (Wilson J), 241-244 (Dawson J).

[19] Ibid, 198-199 (Mason CJ).

[20] Ibid, 204 (Wilson J).

[21] Ibid, 229 (Brennan, Toohey and Gaudron JJ).

[22] Ibid, 230 (Deane J).

[23] Ibid, 244.

[24] Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Journal 57; Miodrag Jovanovic, ‘Collective rights as a distinctive legal concept’ in Collective Rights: A Legal Theory (Cambridge University Press, 2012) 110; Jason Tockman, ‘Eliding consent in extractivist states: Bolivia, Canada, and the UN Declaration on the Rights of Indigenous Peoples’ (2018) 22(3) The International Journal of Human Rights 325; United Nations Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/295, adopted by the General Assembly 2 October 2007.

[25] Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Taylor & Francis Group, 2015); Ambellin Kwaymullina, ‘Aboriginal Nations, the Australian nation-state and Indigenous international legal traditions’ in Irene Watson (ed), Indigenous Peoples as Subjects of International Law (Taylor & Francis Group, 2018) 5.

[26] Central Control Board (Liquor Traffic) v Canon Brewery [1919] AC 744, 752; Commonwealth v Hazeldell (1918) 25 CLR 552, 563, affirming Western Counties Railway Co v Windsor and Annapolis Railway Co (1882) 7 App Cas 178, 188; Attorney-General v Horner (1884) 14 QBD 245, 257; and Commissioner of Public Works (Cape Colony) v Logan (1903) AC 355, 363-4.

[27] Australian Constitution, s 51(xxxi).

[28] Grace Brothers Pty Ltd v Commonwealth (1946) 72 CLR 269, 290-291.

[29] Native Title (Queensland) Act 1993 (Qld), s 144. Cf. Acquisition of Land Act 1967 (Qld), ss 4, 4A and 4B, amended to relate the power to compulsorily acquire property to native title.

[30] Native Title (New South Wales) Act 1994 (NSW), s 97. Cf. Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 7A, amended to include provision for native title extinguishment.

[31] Land Acquisition Act 1969 (SA), amended to include acquisition of native title interests; Native Title (South Australia) Act 1994 (SA).

[32] Land Administration Act 1997 (WA), Pt 9 Div 1 subdiv 2; Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).

[33] Mabo (No 2) (n 4).

[34] Ibid, 27-28 (Brennan J).

[35] Ibid, 15-16 (Mason CJ and McHugh J), 163-164 (Dawson J).

[36] Ibid,118-120 (Deane and Gaudron JJ).

[37] Ibid, 216 (Toohey J).

[38] Ibid, 59-61 (Brennan J); followed in Wik (1996) 187 CLR 1, 177-178 (Gummow J) and Fejo (1998) 195 CLR 96, 130.

[39] Adeyinka Oyekan v Adele [1957] 1 WLR 876; Calder v Attorney-General (British Columbia) (1973) 34 DLR (3d) 145 and Delgamuukw v British Columbia (1991) 79 DLR (4th) 185.

[40] Ward HC (2002) 213 CLR 1.

[41] Wik (1996) 187 CLR 1.

[42] Fejo (1998) 195 CLR 96.

[43] NTA, Preamble.

[44] Mabo (No 2) (n 4), 68 (Brennan J).

[45] Wik (n 41).

[46] Ibid, 242.

[47] Fejo (n 42) 126 [43]-[44], 128 [47].

[48] Mabo (No 2) (n 4), 68-69 (Brennan J), 110-111 (Deane and Gaudron JJ).

[49] Ward v Western Australia (1998) 159 ALR 483, 552 (Lee J).

[50] Calder v Attorney-General (British Columbia) (1973) 34 DLR (3d) 145 and Delgamuukw v British Columbia (1991) 79 DLR (4th) 185.

[51] Western Australia v Ward (2000) 99 FCR 316, 340-341.

[52] Wik (n 41), 86-87 (Brennan J), 126, 132-133 (Toohey J), 135 (Gaudron J), 185 (Gummow J), 221, 248 (Kirby J).

[53] Fejo (n 42), 126-127, 154-155.

[54] Mabo (No 2) (n 4), 68-69 (Brennan J), 110-111 (Deane and Gaudron JJ).

[55] Ward (n 40), 88-90(Gleeson CJ, Gaudron, Gummow and Hayne JJ), 264 (Callinan J).

[56] Ibid, 89 [76], 95 [95] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[57] Ibid, 262-264 [616]-[618] (Callinan J).

[58] Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209 (‘Akiba HC’).

[59] Karpany v Dietman (2013) 252 CLR 507 (‘Karpany’).

[60] Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v Queensland (No 2) (2010) 204 FCR 1, 190-191 [765]-[769] (Finn J); Commonwealth v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group (2012) 204 FCR 260, 312 [171]-[172].

[61] Akiba HC (n 58) 240-241 (Hayne, Kiefel and Bell JJ).

[62] Ibid, 226-227 (French CJ and Crennan J).

[63] Dietman v Karpany (2012) 112 SASR 514, 524.

[64] Karpany (n 59) 514, 519-522.

[65] Brown (on behalf of the Ngarla People) v Western Australia (No 2) (2010) 268 ALR 149; Brown (on behalf of the Ngarla People) v Western Australia (2012) 208 FCR 505; Western Australia v Brown (2014) 253 CLR 507

[66] Congoo (on behalf of the Bar-Barrum People) (No 4) v Queensland [2014] FCAFC 9; State of Queensland v Congoo (2015) 256 CLR 239.

[67] Lisa Strelein, Compromised Jurisprudence: Native title cases since Mabo (2nd edition, Aboriginal Studies Press, 2009).

[68] Sky Mykyta, ‘Losing Sight of the Big Picture: The Narrowing of Native Title in Australia’ (2004) 36(1) Ottawa Law Review 93.

[69] Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Taylor & Francis Group, 2015); Ambellin Kwaymullina, ‘Aboriginal Nations, the Australian nation-state and Indigenous international legal traditions’ in Irene Watson (ed), Indigenous Peoples as Subjects of International Law (Taylor & Francis Group, 2018) 5.

[70] Jeremy Webber, ‘The Jurisprudence of Regret: The Search for Standards of Justice in Mabo’ (1995) 17 Sydney Law Review 5.

[71] Christopher Kierans, ‘Aboriginal Land Rights: Two Centuries of Denial’ (2012) 2 King’s Inn Student Law Review 103.

[72] Stewart Motha, ‘Mabo: Encountering the Epistemic Limit of the Recognition of “Difference”’ (1998) 7(1) Griffith Law Review 79.

[73] Carlos Scott Lopez, ‘Reformulating Native Title in Mabo’s Wake: Aboriginal Sovereignty and Reconciliation in Post-Centenary Australia’ (2003) 11(1) Tulsa Journal of Comparative and International Law 21; Diego Jenowein, ‘Native Title in Australian Law: Making Space for Self-determination’ (2019) Bristol Law Review 10.

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