Compromised Jurisprudence: Native Title Cases since Mabo

Compromised jurisprudence: native title cases since Mabo Lisa Strelein Aboriginal Studies Press, Canberra, 2006, xii+218pp, ISBN 0855755334 Dr Lisa Strelein has, for some years, headed the Native Title Research Unit at AIATSIS from which she and her colleagues have provided a range of valuable services. Through a variety of publications including a newsletter and Issues Papers, the author has provided thorough analyses of key court decisions very soon after they have been handed down. This volume represents a selection of these analyses considered in the light of subsequent developments. She writes (p.8): the primary focus of this book is the theoretical foundations of native title. It is an opportune time to undertake this task. The last twelve years have been formative in terms of the evolution of the legal concept of native title from uncertain foundations to a more detailed, though arguably compromised, jurisprudence. Ten case studies constitute the core of the book in the following chapters: 1 Recognising native title in Australian law: Mabo v Queensland [No.2] 2 Coexistence and necessary inconsistency: Wik Peoples v Queensland 3 The vulnerability of native title: Fejo v Northern Territory 4 Property and Crown ownership: Yanner v Eaton 5 Native title offshore: Commonwealth v Yarmirr 6 Redefining extinguishment: Western Australia v Ward 7 The limits of coexistence: Wilson v Anderson 8 Proof of a native title society: Yorta Yorta v Victoria 9 Implementing the High Court's jurisprudence: De Rose v South Australia 10 The scope of the doctrines: Neowarra v Western Australia Chapters 1 and 2 rightly stress the positive aspects of the Mabo (1992) and Wik (1996) decisions, but they also highlight problem areas. One example is the inadequacy of the reasoning in Mabo to support the majority conclusion that compensation is not payable for extinguishment of native title (apart from the possible impact of the Racial Discrimination Act 1975 (Cth)). The author, in Chapter 3, is highly critical of the Fejo decision (1998) that a grant of fee simple title necessarily extinguishes native title for all time, and writes (p.41) that: 'The importance of understanding native title as a site of mutual recognition between two peoples and two systems of law found no expression'. Strelein contrasts the approach of Lamer CJ in the Supreme Court of Canada in Delgamuukw v British Columbia [1997] 3 SCR 1010 [81-82], but notes that (pp.42-3) 'the judges in Fejo rebuffed perceived over-reliance on overseas precedents': The judgments in Fejo rejected the need to examine the Indigenous law to see whether any native title rights could coexist with freehold title. Instead, the investigation is carried out wholly within the sphere of the Australian tenure system. By contrast, Chapter 4 welcomes the High Court's subsequent reasoning in Yanner v Eaton (1999) in deciding that Queensland legislation providing that all fauna is the 'property' of the Crown was insufficient to exclude native title rights to take crocodiles, and constituted (p.48) 'no more than an aggregate of the various rights of control by the executive to prohibit the taking of fauna without a licence'. Strelein continues (p.51): The distinction drawn by the Court in Yanner between regulation and extinguishment provides greater scope for the notion of 'impairment' of the exercise of native title rights that could then be reinvigorated when the impairment was lifted. The potential was there for this idea to soften the hard edges of the Fejo decision, which had cast native title as a title highly susceptible to extinguishment. The Yarmirr case (2001) (p.52): provided the High Court with the first opportunity to consider whether native title could be recognised over Indigenous peoples' sea country. …

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