Case: Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1
Outcome: discussed
At the time of the acquisition of sovereignty by the Crown, the accompanying common law recognised certain rights and interests held by indigenous people in relation to land and waters under their existing traditional laws and customs: Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 (' Mabo (No 2) '). According to the preamble to the NTA, the High Court, in Mabo (No 2) , rejected the doctrine of terra nullius and held that 'the common law of Australia recognises a form of native title that reflects the entitlement of the original inhabitants of Australia, in accordance with their laws and customs, to their traditional lands'. Paragraphs (a) and (b) of s 223(1) are based on what was said by Brennan J in Mabo (No 2) at 70: see Ward HCA at [16] (joint judgment). In Ward HCA , the joint judgment acknowledged that account may be taken of what was decided and said in Mabo (No 2) , when the meaning and effect of the NTA is being considered ( ibid ). Deane and Gaudron JJ stated in Mabo (No 2) (109-110): common law native title is a communal native title and the rights under it are communal rights enjoyed by a tribe or other group. It is so with Aboriginal title in the Australian States and internal Territories.' [ Also in Mabo (No 2) , Brennan J stated (51): it be necessary to categorise an interest in the land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category. Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor.' (It may be noted, in passing, that the circumstances contemplated by Brennan J are far removed from those of the present case.) His Honour said (52), however, that that there was no impediment to the recognition of individual rights, whether proprietary or non-proprietary, 'dependent on the community title'. He also observed (61): course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.' Brennan J also referred (at 51-2, 61-2) to sub-group and individual native title rights or interests which were 'dependent on' and 'carved out of' the communal native title. His Honour's analysis therefore seems to be that the largest entity is the 'community', the smallest is the 'individual', and the 'sub-group' lies between the two. In Ward FCAFC , Beaumont and von Doussa JJ also emphasised the communal nature of native title. Their Honours said ([204]): submissions [a reference to a submission by the State that, inter alia, the determination in favour of the Miriuwung and Gajerrong people was in error because it had the effect of giving Miriuwung people an interest in Gajerrong country and vice versa, notwithstanding a finding that Miriuwung country and Gajerrong country were separate territories] fail to recognise that rights of occupation, use and control of particular areas enjoyed by the Miriuwung and Gajerrong community, and the estate groups within it, are a consequence of the communal title shared by the composite community under the traditionally based laws and customs as currently acknowledged and observed by it.' (my emphasis) The State submits 'that a "community" is the largest grouping of indigenous people who (collectively) possess rights and interests in a particular area of land', and is the equivalent of a 'society'. I agree. In Yorta Yorta HCA , Gleeson CJ, Gummow and Hayne JJ treated 'community' and 'society' interchangeably, but preferred to use 'society' at 445 (fn 94) to emphasise the close relationship between the group and the identification of the laws and customs of that group. In my view, s 223(1) reveals a taxonomy of the kinds of native title recognised by the NTA: communal, group and individual. The community, the largest possible native title owning entity, is in fact the society whose laws and customs are in question. The group is smaller, and will ordinarily have a fluctuating membership (so, of course, will the community). The individual is the smallest possible native title owning entity. The State submits that the community or society will be comprised of subgroups and individuals who have particular rights and interests in its land. Thus, the submission is that the reference in s 223 to 'native title' or 'native title rights and interests' as meaning the 'communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters', is a reference, first, to the collective native title of the larger community, and, second, to the particular native title rights and interests of subgroups and individuals within that community. I agree. I accept the following submission made by the State: the Wongatha claimants' claim is viewed as a "communal" or as a "group" claim, the Wongatha claimants must establish that, collectively, whether as a "community" or as a corporate "group" ("the Wongatha people"), they acknowledge and observe a (pre-sovereignty) body of laws and customs which, for them, constitutes a normative system and under which they possess rights and interests in, and have a connection with, the claim area.' The word 'corporate' here merely reinforces the 'collective' idea, and might have been omitted. The Wongatha Claim group must, possess on a collective basis, the rights and interests in question. This is the significance of a claim of group rights and interests as distinct from a claim of individual rights and interests. Yet, as the State submits, both the Wongatha claimants and the anthropologists pointed to claims made on an individual basis 'unmediated by any necessity for membership of a land-owning "group"' (see 3.6(c)(4) for a more detailed discussion). It may be said that this was also true in De Rose . In De Rose , however, the Nguraritja were a traditional group the group constituted by the custodians of a constellation of Dreaming sites or tracks.