The common law doctrine of Aboriginal title in Australia is referred to as native title. Under this doctrine the Australian law recognizes the rights, as well as, interests of the indigenous people to their land which comes from their customs and tradition laws. Through this concept, it is recognized that in some situations, the local indigenous Australians continue to have the beneficial legal interest in the land, which survived the acquisition of their land by the Crown, regarding the radical title, at the time of sovereignty.
In the following parts, a discussion has been carried over the native title rights, which are protected under the common law. Moreover, the discussion would also entail the manner in which these rights could be extinguished in case of the mining leases being granted by the government.
Common Law Protection
The aboriginal people of Australia have been given certain rights and interests in their waters and lands through the Native Title, which stem from their established laws, as well as, customs. The native title recognizes that the indigenous people have the traditional right to speak for the nation. Though, this title does not give the ownership of the land to the indigenous people and even does not give them the power to halt the development in terms of land rights, which is present under the Aboriginal Land Rights Act. The native title presents certain rights to the indigenous people. A number of native title claims are for the sharing of the rights to the land, with the other people, having an interested vested in the same land. The recognition of the native titles presents the right to hold the ceremony to the indigenous people, along with gathering the bush tucker, or regarding having a say on the matter of development of land.
The rights and interests which are given through the native title are known as the common law indigenous property rights. These were recognized initially through the judgment given by the High Court on June 03rd 1992, in the case of Mabo and others v Queensland (No2). This was the first time that the native title rights were recognized in Australia.
In Mabo, the court established that the English law’s rule of reception which was applied till then was not applicable in cases where the land was un-habited and barren. Instead, such rules were applicable where the existing people lived and were settled. The result of this verdict was that the preexisting traditional laws, which were there at the time of settlement, carried on beyond the reception of the English law, to that extent to which they were unmodified or excluded through the succeeding inconsistent laws or acts. As a result of this verdict, the indigenous land rights in Australia, which are still in place due to their non-extinguishment through the later grants, continue to exist.
Later on, this judgment led to the formation of a legislation for this regard specifically in 1993, which came to be known as the Native Title Act 1993. Till this verdict came through, the Australian legal system made a wrong assumption regarding the land of Australia belonging to no one in particular, or in other words, was terra nullius, at the time of arrival of the British people in 1788. Originally founded on the customs and traditions, the common law was the British system of making the law through a judge, on the basis of precedent, i.e., the basis of some previous judgment. The native title is not a new form of grant of land, though it is a common law right, which pre-dates the European settlement of Australia.
The Mabo judgment established that in 1788, the native title to land existed and that it might continue to exist. Though, for such existence that condition was that it should not have been extinguished through a later act passed by the government and also provided that the indigenous groups continued to observe their established laws, as well as, customs. The judgment given by the High Court in Wik Peoples v Queensland, in December of 1996 decided upon the issue, which remained unresolved in Mabo judgment where it was held that there could be a coexistence of the native title rights with the other rights on land which were held under the pastoral lease.
In Wik, the High Court of Australia gave its verdict on whether or not the statutory leases extinguished the native title rights. The court established that the legislative pastoral leases which were being built through court, did not give the right to the leaseholder for its exclusive possession. And so, depending upon the nature and terms of the specific pastoral lease, the native title rights could co-exist. However, in case of a conflict of rights, the rights which were granted through the pastoral lease would cease to end, or in other words, extinguish the native title rights which remained.
The Native Title Act, 1993 is an Australian legislation passed through the Parliament of Australia. The objective of this act was to present a nation system for the protection, as well as, the recognition of the native title. In addition to this, the objective was to co-exist with the national land management system. The rights assigned to the native title have been aptly summarized in the Native Title Act, 1993. This act offers protection of rights on these grounds:
- Right to hunt or access
- Right to protect sites
- To hold ceremony
- Having a say in the land’s development or management
- In certain cases, to live or camp on the land, as well as, sharing he money made through land’s development
- As recognized by the white fellas, the ownership of the land
- To stop the development
- Power of taking away the right to land of the other people, for instance, a company with mining license or pastoralist.
Extinguished Native Title Rights
The Native Title Act presents the cases where a native title may be lost. In cases of freehold titles, the majority of leases over the land would extinguish the native title absolutely. The native title is only partially extinguished in pastoral leases. And the aboriginal titles, for instance the Aboriginal-owned pastoral stations or the land rights would have no affect over the native title.
The native title can be extinguished when the government grants a mining lease to an entity, for the land, which otherwise was protected through the native title right. The Petroleum and Geothermal Energy Act, 2000 provides that a licensee is prohibited from starting any activity relating to mining till the time a statement of environmental objectives is in force for the quoted task. And for this, an environmental impact report has to be prepared, which considers the amenity, cultural and other values as are relevant to such assessment. The owners of such land are entitled for the damages or to compensation for the land, as well as for the impairment and deprivation of the use of land. The owner here includes the holder of the native title. Further, the Mining Act, 1971 presents the manners in which the mining operator can enter the land in order to carry the operations of mining, which includes such authorization through a registered Indigenous Land Use Agreement. In the case of Brown v State of Western Australia, the Full Federal Court ruled that the grant of a mining lease does not actually extinguish the native title in such part of the lease area which the lease holder has developed, as the part of its mining operations. This was a reversal from the earlier ruling given in the case of De Rose v South Australia (No. 2). In this case, the Full Federal Court had determined that the mining activities extinguished the native title in the area and in such situation where the mining activities took place. The verdict of Brown v State of Western Australia determined that the right to camp, hunt, fish or visit the sacred sites were not extinguished, but just suspended for the life of a mine.
However the decision of Brown v State of Western Australia could not be applied to the case of Adani. This is because Adani wanted to convert the property to freehold, in order to construct accommodation for its mine, an airport and a power station. This would mean that none of the rights could be retained by the indigenous people. In other words, the rights of hunting, fishing or visiting the sacred sites would not just be suspended, but would be permanently extinguished due to the conversion of the land in other things. So, in this case, there could not be an existence of native title after the land is converted for Adani. Hence, the grant of mining lease by the government to Adani would permanently extinguish the rights of native title by The Wangan and Jagalingou Indigenous people.
The common law presented the native title rights to the indigenous people, through the landmark case of Mabo, and the latter case of Wik, dealt with the unresolved issue of Mabo to pave the way for a conclusive legislation of Native Title Act. Though, the native title rights could be extinguished if Adani is granted the freehold title, which would act as the permission to convert the land of the Wangan and Jagalingou Indigenous people into airport and the other infrastructures which Adani has planned on constructing. Moreover, the verdict given in Brown could not be applicable here, as the construction undertaken by Adani would mean a permanent end to the native title of the Indigenous people.
- Articles/ Books/ Reports
Berg S, Coming to Terms: Aboriginal Title in South Australia (Springer, 2016)
Brown v State of Western Australia  FCAFC154
De Rose v South Australia (No. 2)  SCAFC 110
Mabo and others v Queensland (No2) (1992) 175 CLR 1
Wik Peoples v Queensland (1996) 187 CLR 1
Aboriginal Land Rights (Northern Territory) Act 1976
Mining Act, 1971
Native Title Act 1993
Petroleum and Geothermal Energy Act, 2000
Australian Government, Native Title Act 1993 (2017) <https://www.legislation.gov.au/Details/C2016C00748>
Berkovic N and Burrell A, Leases do not end native title: court (13 March 2014) <https://www.theaustralian.com.au/national-affairs/indigenous/leases-do-not-end-native-title-court/news-story/3e28740edc82878d688010d058e5ada9>
Central Land Council, The CLC’s Easy Guide to Native Title (2017) <https://www.clc.org.au/articles/info/what-is-the-native-title/>
Government of South Australia, Native Title on Crown land (2017) <https://www.google.co.in/url?sa=t&rct=j&q=&edata-src=s&source=web&cd=7&cad=rja&uact=8&ved=0ahUKEwjdz7jk8NzSAhVEvo8KHV9TBKwQFghBMAY&url=https%3A%2F%2Fwww.environment.sa.gov.au%2Ffiles%2Fsharedassets%2Fpublic%2Fcrown_lands%2Ffact_sheets%2Fcrown-land-native-title-fact.pdf&usg=AFQjCNHcjvlGvwJNK1vVVmWb_9sFz5wGnA&bvm=bv.149760088,d.c2I>
Jade, Wik Peoples v Queensland (2017) <https://jade.io/j/?a=outline&id=67973>
Robertson M, Mining lease does not extinguish native title (26 November 2012) <https://www.mccullough.com.au/icms_docs/142732_Resources_-_26_November_2012.pdf>
Whittaker J and Bunker T, An Odd Couple: Mining Leases And Native Title Can Coexist - Western Australia V Brown  HCA 8 (24 March 2014) <https://www.corrs.com.au/publications/corrs-in-brief/an-odd-couple-mining-leases-and-native-title-can-coexist-western-australia-v-brown-2014-hca-8/>
Willacy M and Lavoipierre A, Carmichael coal mine: Coordinator-general proposes extinguishing native title over key mine property (28 November 2015) <https://www.abc.net.au/news/2015-11-27/proposal-to-extinguish-native-title-over-key-adani-mine-property/6979998>