Personal and proprietary interests 175
property rights. Again, there is no such mechanism in English law for exchanging customary rights for rights more appropriate to changed circumstances.
5.3.5. Extent of native title
This is an issue that was left unresolved in Mabo (No. 2) and has proved to be contentious in later cases. Once a tribe has established native title over an area, does this automatically mean that it has general use rights over that area, akin to ownership? If so, the tribe will be treated as having control of that area and entitled to resist all incursions, not just those infringing specific rights, and it will also become entitled to all resources found there (such as oil and minerals) just as a private common law owner would. However, it might also mean that any past government grant of property rights in that geographic area would be treated as inconsistent with the native title and therefore as having extinguished it. If, on the other hand, a successful claim to native title merely confirms the right to use the territory in the way it has always been used, the claimant gets no rights of control over the area or rights to natural resources unless it can prove that it has always had them. It does, however, open up greater possibilities for the co-existence of native title and private property rights. This was the significant step forward made in Wik Peoples v. Queensland (1996) 187 CLR 1 referred to in Chapter 4, where it was established that both pastoral leases and the native title claimed by the tribes in that case conferred only specific use rights rather than general use rights, so that, to the extent that they were not specifically incompatible, the one would not have extinguished the other. While the consequences of this decision have been largely reversed by the Native Title Amendment Act 1998, this ‘bundle of rights’ approach has been followed in subsequent cases, and severely criticised by commentators who see it as an unjustifiable limitation on the scope of native title (see, for example, the articles by Bartlett, ‘Humpies Not Houses’ and Tehan, ‘A Hope Disillusioned’).
As we can see from Delgamuukw v. British Columbia [1997] 3 SCR 1010 (extracted at www.cambridge.org/propertylaw/), the Supreme Court of Canada has drawn clearer distinctions between ownership-type rights and specific use rights, and has developed a more sophisticated approach under which land held under aboriginal title can be used in any way, not just in ways it has always been used, but subject to the limitation that it ‘cannot be used in any manner that is irreconcilable with the nature of the claimants’ attachment to the land’ (paragraph 125). Further, it recognises that there is a distinction between this general aboriginal title and aboriginal rights, which are essentially specific use rights (paragraphs 137–42).
5.3.6. Is native title proprietary?
5.3.6.1. Blackburn J’s view in Milirrpum
For Blackburn J in Milirrpum v. Nabalco Pty Ltd, this was an important question. The issues he was asked to decide were argued on the basis that, even if colonisation had not extinguished all rights of the indigenous population, the only rights that
176Property Law
could have survived were those that were recognisable as proprietary rights by the common law. As we saw in Chapter 4, his firm conclusion was that, whatever the nature of the aboriginal relationship with the lands they inhabited, it was not proprietary.
However, it is important to appreciate that he rejected most of the arguments that the government put forward in support of its contention that the claimants’ relationship with their land could not be categorised as proprietary. He refused to accept the government’s argument that there was nothing in the aboriginal world that was recognisable as law at all because there was no discernible law-maker or law-enforcer. He rejected this Austinian assumption of what it takes to have a legal system, preferring the more inclusive view that law is no more than ‘a system of rules of conduct which is felt as obligatory upon them by the members of a definable group of people’ (p. 266). This amounts to an acknowledgment that, whenever people live in a definable community, they can be taken to have a recognisable system of law, and indeed he suggested that any conclusions reached in the past that particular indigenous groups in colonial territories had ‘no ordered manner of community life’ so as to give rise to a system of law, were based on inadequate anthropological knowledge.
He also rejected the government’s argument that the claimants did not form a definable community. It was not necessary, he said, for the community to be defined with any great precision or specificity. It was sufficient to say that there was a system of laws recognised as obligatory upon them by those ‘who made ritual and economic use of the subject land’ (p. 267) – a somewhat circular definition which removes considerable potential obstacles to the recognition of communal property rights.
Finally, he rejected a contention that there was insufficient certainty about which clans were entitled to use precisely which areas. The government argued that the physical boundaries of their use were not sufficiently precise for there to be certainty as to the subject-matter of their rights, nor was there sufficient certainty as to the identity of the holders of the rights in any particular area. We noted above in section 5.1.4 that it is generally necessary that the subject-matter of a right and the identity of the right holder should be certain if the right is to be categorised as a property right. Blackburn J did not disagree with this, but he did not accept that the same degree of precision was required for native title as might be required for common law private property rights. As far as physical boundaries were concerned, he considered that it was sufficient if they were defined ‘with . . . such precision as the users of the land require for the uses to which the land is put even though this might be less precisely definable than those to which we are accustomed’ (p. 271). As to certainty of the right holder, he rejected the contention that ‘if there is property in land, there must be either a written or pictorial means of discovering who is the owner of any particular piece of land . . . or if that is not possible among primitive people, there must be a sufficient number of witnesses who can produce a register of title out of their memories . . . In my opinion, the fallacy in this
Personal and proprietary interests 177
argument is the assumption that there cannot be rights of property without records or registers of title’ (p. 272).
So, he was willing to accept that the Aboriginal peoples inhabited their lands under a system of laws, and that a sufficiently defined community made ritual and economic use of sufficiently defined areas of land. Why then was he not prepared to accept that they had rights to use the land in the way that they did?
In his view, there were three characteristics that property rights tended to have: they involved a right ‘to use and enjoy’ the subject-matter, a right to exclude others from it, and a right to alienate the rights. These were not present in the relationship the claimants had with their land, he said, and therefore it could not be a proprietary relationship.
It is not clear why any of these three should be thought to be necessary criteria for proprietary status, and in the case of the first two it is equally unclear as to why the claimants in this case could be said to fail to meet the criteria, even if they were necessary. To take the last one first, we have already seen that alienability is not a characteristic of communal property rights (or even of private property rights) where the right holders are defined by reference to a status. Similarly, the right to exclude others is admittedly characteristic of limited access communal property but it does not arise in the case of open access communal property. What marks property off from non-property is the right not to be excluded, not the right to exclude. Here, as far as one can gather from the evidence given in the judgment, the aboriginal population of the territory regarded particular clans as having the right to exclude others from religious sites, and the population as a whole regarded themselves as having a right not to be excluded from the resources whose use they shared, and certainly regarded the proposed activities of Nabalco as an invasion of those rights.
The question of the right to use and enjoy is more complex. It is quite wrong to say that all property rights in things give the right holder the right to use and enjoy the thing. Your landlord has a property interest in the house you rent from him, as does your neighbour who has the benefit of a restrictive covenant over it, but this does not give either of them the right to use and enjoy it. The right to use and enjoy is a characteristic incident of ownership, not a necessary incident of all property interests. But, even if the right to use and enjoy the land was a necessary ingredient of the kind of interest the Aboriginals claimed to have, it is difficult to see why Blackburn J thought they had failed to establish it.
The problem as he saw it was that the definable communities – the clans – had only a spiritual relationship with the land: they regarded themselves as under a duty to care for the land as a whole, with specific clans having particular responsibility towards specific sites, which they ‘used’ only in the sense that they performed religious ceremonies there. He accepted that the Aboriginals did of course make economic use of the land – they lived there and were entirely dependent on its natural resources. However, they did so in transient ad hoc food-gathering and communal-living groupings – the bands – which appeared to have no particular
178Property Law
connection with any particular tribe. Membership of a band was not restricted to any particular tribe, nor did any band feel itself bound to confine its activities to territory associated with one tribe rather than another, and there appeared to be no other defining characteristic that could allow bands to be viewed as right-holding communities. So, he concluded, the only potential right holders were the clans, but they did not appear to regard themselves as having any ‘rights’ to use and enjoy the land, only duties towards it.
This is a surprisingly narrow conception of ownership to adopt, given the very different cultural context, even if we were to accept that what the claimants had to establish was something resembling ownership. It is not difficult to conceive of a community that regards itself as ‘owning’ a site while simultaneously regarding itself as bound not to enter it, or bound not to use it for any purpose other than religious observances. European religious organisations own churches and have sacred objects too. It is true that their position might best be described as having a legal right to use and enjoy in any way they choose (perhaps subject to obtaining planning permission) but a moral or spiritual obligation to use for religious purposes only, but who is to say that the same is not true of Aboriginal Australian sacred sites? And, even a legal ban on use and enjoyment is not inconceivable. The common law would have no difficulty with the concept of ownership of an area of land which no one, not even the owner, was entitled to enter or use in any way – perhaps a nature reserve, or an area of contaminated land.
So, the reasons that Blackburn J gave for concluding that native title – if it existed at all, which he doubted – was not proprietary are hardly convincing.
5.3.6.2. The view of the High Court in Mabo (No. 2)
In a sense, the question of whether native title is or is not proprietary has become a side issue after the decision of the High Court in Mabo (No. 2). Once it has become established that, whatever native title is, it has survived annexation and has to be recognised by the state, it becomes less significant whether this is because it is proprietary or for some other reason.
In fact, only a minority of the judges in the High Court were prepared to accept that native title is proprietary. Brennan J (with whom Mason CJ and McHugh J agreed) expressed the firm view that it is (paragraph 53 of his judgment), but Deane J and Gaudron J disagreed. In their view, the indigenous peoples had personal but not proprietary rights, and it was for this reason that their rights were effectively extinguished by the government granting inconsistent property rights to others (paragraphs 23–4, 29–30 and 60 of their judgment): if they had had property rights they could not have been extinguished in this way. Neither of the other two judges expressed a concluded view. Dawson J, in the minority, said that, if there was such a thing as native title that survived annexation – which he rejected – it was ‘probably not’ proprietary in nature but it was unnecessary for him to decide the question (paragraph 80 of his judgment).