by S.E.K. Hulme a senior Melbourne barrister.
“With the High Court constantly changing, no decision is fixed forever, not even title over freehold land.”
There has been prolonged criticism of the Federal Government from the Opposition, media, churches and Aboriginal activists for including in the native title amendments a provision that all grants to freehold land eliminate any former native title.
It is said that the government has done this in full knowledge that it is clear that grants of freehold land already have that effect, and that the raising of this “backyard” issue is no more than a cynical tactic intended to scare innocent householders into approving any legislation.
There is in fact plenty of reason to welcome the inclusion of this principle in the legislation, and its endorsement by Parliament.
There are at least two reasons.
First, it is absurd to say that because the principle has been stated in the High Court for the present, that fixes the matter forever. The High Court has quite often overruled principles stated in earlier cases.
It is particularly ironic that anything said in Mabo should be claimed to be beyond the reach of the High Court. For in that case, in the words of the Governor-General himself (one of the majority judges), the court departed from principles that had been “a basis of the real property law of this country for more than one hundred and fifty years”.
Those principles had been repeatedly endorsed by the High Court (and Privy Council). When the day came, that availed nothing.
There is not the slightest reason for believing that future High Courts will treat what was said in Mabo as any more sacred than the principles of real property law overruled in Mabo.
For a decade now the court has prided itself on - indeed boasted of - its willingness to revisit and reconsider earlier doctrines, to lay down what it considers to be best from time to time. Why might not the court, later or sooner, reconsider what was said in Mabo about grants of freehold?
The second reason to welcome the legislative provision springs from matters raised in the Wik case. The case concerned not only its famous pastoral leases, but certain mining leases. It was argued that these mining leases, and the agreements that led to them, were invalid.
The argument was that in making the decision to enter into those agreements and grant the leases, the Queensland Government had acted in breach of trust to the Aborigines; had acted contrary to proper procedure by making the decision without consulting Aborigines beforehand; and had acted contrary to the proper procedure in itself deciding a matter affecting the rights of itself and other persons (the Aborigines).
In Wik, this attack did not prosper, since the agreements had been authorised by a special Act of Parliament which was not challenged. Confirmation by an assumedly valid Act secured the agreement and the leases.
The court did not need to, and it did not, reject the possibility of claims of the same kind operating to make agreements and grants of leases invalid where not protected by a valid Act.
Most mining leases do not have a special Act of parliament. Only the big ventures get that. Most mining leases rest on the basis of executive decision and a grant under a general Mines Act. I can see no reason why all such leases are not open to precisely the attack of the type made in Wik.
What seems not so far to have been noticed, is that most freehold titles likewise trace back to grants based on executive decision under a general statute (called in most states its Lands Act). I can see no more reason to suppose those grants of freehold title either, as being any more beyond challenge than the leases involved in Wik.
If a challenge did succeed (there have been three freehold challenges in the High Court so far), it could effect every executive decision affecting native title since Governor Phillip landed at Sydney Cove in 1788.
One would have thought that these considerations more than sufficed to make it proper for the holders of freehold title to welcome such security as an Act of Parliament can give them, and for Parliament to provide it.
And if it is so clear that grants of freehold land extinguish native title, why do there exist now, hundreds of active native title claims over freehold land, including large areas of freehold land in this state (Victoria)?
Why are holders of freehold land in Victoria having to deal with these claims, if they cannot possibly succeed?
There seems only one reason for those claims. Someone thinks they just might.