Adnyamathanha's Native Title Claim Analysis

Question 1

In order to determine if the Adnyamathanha’s native title claim is valid, they must demonstrate that they have “maintained Aboriginal law and customs on that land” and that “no other titles allowing ownership of that land [have] extinguished…the native title” . This criteria is based on the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 (“Mabo [No 2]”) , and supported in The Wik Peoples v Queensland (1996) 141 ALR 129 (“Wik”) and Western Australia v Ward (2002) 191 ALR 1 (“Ward”) . A successful claim is also dependent on the specific South Australian legislation that provides protection to both pastoral leases in the Adnyamathanha’s area of claim – that is, the Land Act 1888 (SA) . If it can be proven that the Goldberg

and Pollini pastoral leases have not extinguished native title in their areas , then the Adnyamathanha’s full claim for native title over the Northern Flinders Ranges may be granted.

The history of native title and terra nullius in Australian law is significant to the future of Indigenous land rights and any potential claimants.

Since the 1990s, the protections that native title grants have been defined under a number of case law and statute law provisions. In Mabo [No 2], the High Court ruled that Australia’s status as terra nullius was invalid and that native title had existed as a part of Australian law since 1788 . Additionally, Mabo v Queensland (1988) 166 CLR 186 (“Mabo [No 1]”) found that the Queensland Coast Islands Declaratory Act 1985 (QLD) was inconsistent with the Racial Discrimination Act 1975 (Cth) and thus invalid in its deliberate curtailing of Indigenous land rights in the Queensland area. Although the concessions granted in both Mabo cases gave unprecedented recognition to native title, it was also the precursor to the creation of limited legal rights in order for the Australian and Indigenous legal systems to coexist. The community backlash after Mabo [No 2], especially among pastoralists and farmers who feared their existing land rights would be eroded by a wave of native title claims , led the Keating Government to create the Native Title Act 1993 (Cth) . This was done in an effort to codify Mabo [No 2] in statute law, give federal recognition to the land rights of the Indigenous peoples, and to guide native titles co-existence with current Australian land rights. The Act was further amended by the Howard Government in 2007 , and

again in 2009 by the Rudd Government . Native title is currently a contentious and, generally, poorly understood area of deliberation. Leading Australian legal writers have noted that there has never been a measured and reasoned response by the public or the government, and the rhetoric surrounding discussion of native title has been described as “highly politicised” . This extreme reaction was, in part, due to the ambiguity surrounding the final judgement in Mabo [No 2]; the High Court did not clearly state what the effect of native title would be on non-Aboriginal land holders, nor did they describe the types of land rights that would extinguish native title.

It was in this political and public landscape that the judgements in Wik and Ward were provided in the late 90s/early 00s.

The Wik case is very similar to the Adnyamathanha’s current land claim in that several areas of native territory had been given up for pastoral lease by the Crown. In Wik, the ratio decendi was that the legislation for the pastoral leases did not provide exclusive land rights or possession to the current tenants, and that the Crown was ultimately the owner of these lands. The High Court ruled that native title therefore could co-exist with current pastoral leases in the area without significantly disrupting either parties’ right to the land. However, in the event of a conflict of rights (i.e. if the grazing and watering area of a farmer disrupted the fishing activities of Indigenous people) the native title over that particular area would be extinguished by the pastoral lease. This decision was upheld in Ward, where Kirby J stated that, “given that substantial and complex amendments to the NTA were enacted by the federal parliament upon the basis that Wik correctly stated the law,” the holding in Wik should not be revisited. However, Wilson v Anderson [2002] HCA 29 (“Wilson”) (a contemporaneous case to Ward) dismissed the findings in Wik. Callinan J noted that there was a lack of unanimous finding in Wik about the factors needed for non-exclusive possession of land rights and subsequently Wik should, “only be binding if the provisions of the Western

Australian legislation were indistinguishable from those considered in that case.” This view was supported by the majority of the bench, even though they took care to mention that Wik should not necessarily be altogether dismissed due to its codification in the Native Title Act 1993 (Cth). No further cases have explored the varied decisions in Wik, Ward and Wilson, creating ambiguity over whether or not pastoral leases fully or partially extinguish native title.

In the instance of the Adnyamathanha’s claim, the tests in Mabo [No 2] and Wik should be applied. As mentioned above, the Adnyamathanha peoples must prove that their traditional customs and laws have been maintained in the Flinders Ranges; if this test is failed, it would be unlikely that they could succeed in a native title claim despite their history. Assuming that this can be proven, they must also prove that no other land rights have extinguished their right to native title in the area. This creates an element of conflict when considering pastoral leases, such as in the instance of Goldberg and Pollini. To determine whether or not these two leases instil exclusive possession of land rights to the families, the relevant sections in the Land Act 1888 (SA) must be considered, as well as the terms of the leases. The Goldberg lease explicitly states that it is a pastoral lease and, even though the construction of housing on the land is permitted, this is for pastoral purposes only. Although the Pollini lease is not clearly stated as being for pastoral use, no other activity is authorised on the land. The wording of these leases seems to support the claim that they are pastoral in nature. Section 40(1) states that, “…the Minister may, by notification, declare any Crown land open for pastoral lease, and withdraw any land from being open for pastoral lease.” This appears to support a claim that these pastoral leases are non-exclusive, as it creates the ability for the Crown to dissolve the lease at any time subject to any conditions. If the Minister were unwilling to give control of the land back to the Crown in order for a full native title claim, the wording of this section also supports co-existence of land rights between the pastoralists and the native title claimants. The land rights of the Goldberg and Pollini families in this case bear strong resemblance to the pastoral leases in Wik, further supporting a judgement that their leases do not fully extinguish native title. However, the court may decide to take Wilson as the precedent in this case and find that the leases fully extinguish native title in the affected areas – in that case, the Adnyamathanha’s full claim would not be upheld, but it would be possible to have a partial claim over the areas of the Flinders Ranges not affected by Crown pastoral leases.

Question 2

To determine if native title has greater, equal, or lesser land rights than pastoral leases, the relevant case and statute law must be taken into account. The Native Title Act 1993 (Cth) provides a number of set rights and, by omission, the inadequacies of native title. Among these is the right to protect sites, access, hunt, camp, hold ceremony, or live on the land, and the right to consultation on the management or development of the land. The Act does not grant ownership or possession of the land, the power to extinguish other land rights, or the right to stop developments on the land. The benefits of a pastoral lease is that the capital required upfront is minor, there is opportunity to end the contract and rent another, larger asset if the company grows, and the Crown offers protection against infringement on land rights by other entities. However, pastoral leasing does not provide ownership of the property, and lease terms are usually fixed and long-term. In the case of the pastoral leases in the Land Act 1888 (SA), these leases are of a term “no longer than 30 years”. Under Wik and Ward, pastoral leases do not fully extinguish native title, as the lease is viewed as a non-exclusive right for the land holder; Wade disputes this, and may provide precedent for future case law support of pastoral lease property rights. That said, the current legal precedent is that Wik is correct, as it is supported by statute law and has been codified in amendments of existing native title legislation. However, even though pastoral leases do not fully finish native title claims, this does not automatically mean they have lesser land rights than native title; indeed, the decision in Wik that native title would be extinguished in the event of an explicit conflict between it and a pastoral lease indicates that pastoral leases are viewed legally as having greater rights over lands than native title.

The cultural element of native title is a factor in pursuing a claim. Although neither native title nor pastoral lease provides possession of the land, the enjoyment of Crown protection versus the cultural significance of having traditional land rights honoured is an important consideration. Native title can be viewed as providing fewer rights than pastoral leases (due to pastoral leases extinguishing native title in the event of explicit conflict), though the statutory protections and developing case law surrounding native title may be sufficient to support a claim that, if not now, native title may enjoy further protection from the courts and the parliament in future. Pragmatically, a pastoral lease would be best in the short-term for the Adnyamathanha peoples (although they still could not extinguish the other pastoral leases in the Flinders Ranges), a native title claim may be best for the long-term prosperity and continuing respect for their traditions. If the Adnyamathanha people decide to pursue a pastoral lease, it is likely they would have to surrender any claim to native title to the Crown thus denying them any future protections native title may offer (or, alternatively, protecting them from any attempt to discriminate on the basis of race). A native title claim should be recommended above forming a pastoral lease with the Crown, on the basis that the cultural importance and respect for traditions is too important to surrender, and there is potential for future positive developments in Indigenous land rights.

The Adnyamathanha people, as long as they could prove traditional ownership and use of the land is ongoing, have a strong case for native title. Though they are unlikely to extinguish the existing pastoral leases in the area, they would be able to enjoy co-existing land rights with the pastoralists. Even though pastoral leases provide greater land rights than native title, they should still pursue a native title claim on the basis of future legislation and case law in the area supporting the development of recognition and protections. It would be unwise for them to surrender their claim to native title to the Crown for a pastoral lease as there is the potential for future change in Indigenous land rights due to the politicised nature of this issue.