Recent native title decisions in the High Court

Anxious native title lawyers, waiting 18 months for last week's High Court decisions, sometimes remarked 'the High Court is over Mabo'.

They were apprehensive that the Court would resolve conflicts between the title discovered in 1992 and two centuries' worth of property law in a manner seriously disadvantageous to native title.

The seeds of this approach were present in Mabo, although they are not often remarked on, and were strengthened by discriminatory 1998 amendments to the Native Title Act. The lawyers' apprehension in part reflected insistence by the judges during the appeals that they focus on the legislation and not the cases (Mabo and Wik) which preceded it.

In many respects, the decisions in WA v Ward and Wilson v Anderson confirm the lawyers' pessimism. However, they also contain some surprises.

It has been widely reported that the Court ruled in Ward that native title claims cannot be made to minerals and petroleum in the ground. This is the practical result for most Australian jurisdictions. The Court interpreted a Western Australian statute vesting property in situ minerals in the Crown as not allowing continued existence of native title to the minerals. There are similar statutes elsewhere: for example, Justice Drummond reached the same conclusion about Queensland in an early round of the Wik litigation.

However, in New South Wales, where the device of asserting Crown property to minerals has not been used except for some coal, some minerals have been granted to private landowners while others have been 'reserved' to the Crown.

The Ward ruling cannot apply to these reserved minerals. Native title claims to in-ground resources in New South Wales are unlikely to succeed as a matter of evidence - because people have trouble proving traditional rights to use them - rather than as a matter of law.

Perhaps surprisingly, unlike the Full Federal Court, the High Court has left open the question of whether native title rights survive to the surface of land held under mining leases. Where Aboriginal people prove traditional hunting rights to mining lease land, these might survive because a mining lease amounts to the grant of exclusive rights to mine, not exclusive rights to occupy, the land. This conclusion is likely to apply elsewhere in Australia, and the Court has not made an exception to it for large projects like the Argyle diamond mine.

The Court's general approach confirms that native title law is no place for cross-cultural tolerance. This has been evident in other court decisions. Unlike north American jurisdictions, which tended to treat 'Indian' or 'aboriginal' titles as equivalent to full ownership, Australian law (with the significant exception of the trial judge, Justice Lee, in the Ward case) insists that the rights conferred by 'native' title can only reflect proven tradition.

Claimants need to prove all aspects of the tradition which they seek to practise as native title. This burden sits uncomfortably with the history of Australian Aboriginal affairs - a history of the suppression of tradition - but native title law does nothing to overcome this. As is now well known, there are no excuses for people who lost their tradition by being driven off their land or removed from their families as children.

Paradoxically, however, Australian law may still refuse to 'recognise' some indigenous land traditions as native title. This is because cultural categories underlying Australian law are intolerant of different ways of classifying the world.

Although native title litigation now occurs under the Native Title Act, the 'recognition' principles are still the ones laid down in Mabo: principles of 'common', or judge-made, law. (The Act mainly changed the 'extinguishment' principles.) The High Court has hinted that Aboriginal spirituality alone may connect people to land even when they can't prove recent presence on it, but spirituality alone is unlikely to generate recognisable rights.