BY PATRICK McCABE

2018 saw a potentially important development in Australian native title law that has been emerging since 2013 move towards maturity. That development is the recognition of commercial native title rights in native title determinations. It is a belated development, but it is one that has the potential to challenge the familiar critique of native title as nothing but a white man’s band-aid on the gaping wound of indigenous dispossession.

The great majority of native title determinations grant non-exclusive ‘bundles of rights’ to do things like perform ceremonies, hunt, and traverse the relevant land. Until very recently, these ‘bundles of rights’ were almost always explicitly limited to non-commercial purposes. In 2011, Anne Hewitt wrote a paper entitled ‘Commercial exploitation of native title’, in which she could find only two cases where a commercial native title right had been recognised: a 2007 consent determination of native title in Lovett v Victoria, and the 2010 single judge decision of Akiba v Queensland (No 2) (‘Akiba). This failure to recognise commercially useful native title rights was particularly galling and darkly ironic given the platitudes consistently issued by governments, then and now, concerning their alleged commitment to empowering indigenous people to unlock the economic potential of native title.

The single-judge decision in Akiba mentioned by Hewitt was soon overturned by the Full Court. However, in a significant 2013 judgment, the High Court (mostly) reinstated Finn J’s original decision. Akiba concerned a claim for native title rights over the seas of the Torres Strait. The main relevant issue in the High Court appeal was whether the commercial native title right found by Finn J to exist over the sea had been subsequently extinguished by laws regulating commercial fishing. The High Court found that the fishing legislation did not extinguish the right. The Court did not need to deal squarely with the question as to whether Finn J was correct to find that the commercial native title right existed in the first place. But the Court’s passing comments on the subject seemed to indicate approval of Finn J’s finding. This approval seemed to suggest a new paradigm in commercial native title rights had arrived.

Intriguingly, the key to this development turned out simply to be the way the claimed commercial right was framed by the applicants. In the past, a separate ‘right to trade’ (or similarly-worded right) would be claimed, and then would (almost) always fail to be proved to exist. The genius of the applicants’ approach in Akiba was simply to claim a right ‘to take for any purpose resources from the claim area’, and then refuse to agree to limit those purposes to non-commercial ones. The benefits of this approach were numerous, both in terms of proving the existence of the right, and in ensuring it hadn’t been subsequently extinguished. It appeared there would be very significant advantages for future applicants in claiming a right in the precise terms claimed in Akiba, namely, the right “to take resources for any purpose” (henceforth called ‘the Akiba right’).

After the High Court decision in Akiba, other native title applicants picked up on the idea. In 2014, following soon after Akiba, Justice North handed down two decisions in which an Akiba right was claimed. In both cases, His Honour found the right should be recognised in a native title determination. The Western Australian Government appealed one of these decisions, but in 2015 the Full Court unanimously upheld North J’s judgment in an important decision, Western Australia v Willis. Willis dealt with the question of commercial native title rights claims in substantial detail, and appeared to settle the law in this area. After Willis, as I wrote in the Australian Indigenous Law Review at the time, it seemed that the shift was complete, and that the recognition of commercial native title rights had rapidly moved from nigh impossible, to now being orthodox.

Yet in 2016, the year after Willis seemed to settle the law, there were only three cases involving claims of an Akiba right, and all were contested by state governments. It was clear that governments, at least, were not yet ready to accept the arrival of any new paradigm in respect of commercial native title rights.

In Murray v Western Australia (No 5), an Akiba right was claimed and contested. McKerracher J briefly noted the developments in Akiba and Willis, and said Willis indicated significant “advances in jurisprudence concerning proof, formulation and extinguishment of native title rights”. His Honour applied Willis, and found that the Akiba right ought to be recognised in the case at hand. His Honour explicitly endorsed the wording of the Akiba right as an appropriate way to frame a claim for native title rights.

Shortly afterwards, in Rrumburriya Borroloola Claim Group v Northern Territory, an Akiba right was claimed, and again contested, this time by the Northern Territory Government. The NT essentially sought to relitigate arguments already dismissed by Willis. The NT argued that actual evidence of pre-sovereignty commercial activities is needed to establish an Akiba right and was lacking. It also argued that the absence of pre-sovereignty commercial activities meant that any native title right to take resources from the claim area would necessarily be silent as to whether or not resources may be taken for commercial purposes, but it should not logically follow from this silence that the applicants are therefore permitted now to take resources for commercial purposes.

These were all matters dealt with in Willis, and Mansfield J provided a substantial and illuminating exegesis of Willis before dismissing the Government’s arguments and determining that the Akiba right ought be recognised. The Territory also raised an argument about the significance of the fact that the Akiba right was a departure from past practices. Mansfield J acknowledged this, saying:

[I]t has been common in the Northern Territory to determine a native title [exclusive] right of possession, … and/or a non-exclusive native title right to share or exchange subsistence and other traditional resources …, but to provide that the native title rights and interests are for the personal or communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose: … A similar approach has been taken in Queensland…

(It should be noted that a similar approach has indeed been taken in all relevant Australian states.) Mansfield J said these past practices do not “provide any assistance in determining the present applications” and dismissed this argument of the Territory too.

It is interesting to observe in passing that the same expert report of anthropologist Dr Scott Cane that was relied on by the applicants in Willis was also relied upon in Borroloola. This report was an instructive (and fascinating) account of pre-sovereignty trade throughout Aboriginal Australia, not limited to the claim area in Willis. It ambitiously sought to correct the received wisdom about pre-sovereignty Aboriginal societies and their capacity for commercial activities, and was singled out for effusive praise in Willis by both North J and then Jagot J on appeal. The report’s use in Borroloola suggests it may continue to be fruitfully deployed by applicants in future cases.

Late in 2016, Mortimer J handed down her decision of Narrier v Western Australia. In that case, an Akiba right was yet again claimed, and contested. The State made the familiar argument that there was insufficient evidence of pre-sovereignty use of resources for a commercial purpose. Mortimer J dismissed this argument and found an Akiba right should be recognised. She noted that where an Akiba right is claimed, the claimant does not bear the onus of proving actual exercise of that right for each conceivable purpose. This much had been firmly established by Willis.

There were thus three cases in 2016 which ultimately recognised an Akiba right. Yet all of these were contested, and all the consent determinations of native title reached in 2016 continued to stick to the old practice described by Mansfield J in Borroloola of recognising expressly non-commercial rights. None utilised the Akiba right. 2016 thus seemed to herald a disappointingly halting start to the development of the Akiba right.

Then in 2017, there was, ominously, hardly any mention of the Akiba right at all. Twenty consent determinations made in 2017 continued to utilise various formulations of the old expressly ‘non-commercial’ rights, of the kind referred to by Mansfield J in Borroloola. However, right at the end of 2017 in December, the first consent determination incorporating an Akiba right was at last agreed, in Atkins v Western Australia. This seemed a significant, albeit still uncertain, step in the Akiba right’s journey towards orthodoxy.

It is 2018 which may ultimately be regarded as the year the recognition of commercial native title rights came to maturity as part of orthodox native title practice. In 2018, there were no less than 7 determinations of native title that recognised the Akiba right, and 6 of them were consent determinations (Forrest v Western Australia, Muir v Western Australia, Wiggan v Western Australia, Wavehill v Northern Territory, Sturt v Western Australia, Street v Western Australia, Manado v Western Australia was contested, and overturned on appeal, but on an irrelevant issue). There were still 14 consent determinations that recognised the old ‘non-commercial’ right, but in 2018 it became clear that commercial native title rights are indeed now becoming a relatively standard component of consent determinations of native title.

This quiet but significant shift, hardly thinkable a few short years ago, is an achievement native title applicants and their representatives can take pride in. It goes a little way to ameliorating the many deficiencies and disappointments of native title for indigenous people. But there is a danger that its significance for lawyers and academics may be greater than its significance for indigenous people. First, the shift is cold comfort for the many indigenous groups whose native title determinations have already been made. Section 13 of the Native Title Act does allow determinations to be amended in some circumstances. It remains to be seen whether courts would consider a change in the common law to be sufficient to enliven section 13, but it seems more likely than not (the recent case of Tarlka Matuwa Piarku (Aboriginal Corporation) RNTBC seems to provide some support for this proposition).

The bigger question may be whether it is worth the pain and hard work necessary on the part of indigenous people to reopen and amend an old determination, calling fresh lay witness evidence in order to do so. This will depend on whether commercial native title rights prove useful or not. This is the second concern – whether the commercial native title rights now being frequently recognised by the courts will actually turn out to deliver real economic gains for indigenous people. At the moment, this is an open question. While there are grounds for cynicism, it is sincerely hoped that this question can be answered affirmatively. If it can, native title law will take a small, important step towards achieving its original promise to indigenous Australians.

Patrick McCabe is a lawyer and masters student at the University of Melbourne. 

Suggested citation: Patrick McCabe, ‘Commercial native title rights in 2018: a belated new dawn’ on AUSPUBLAW (20 February 2019) <https://auspublaw.org/2019/02/commercialnativetitlerights>