The article, "A case for land certainty", by S.E.K. Hulme (Herald Sun 24/12/97) makes it very clear that the High Court, at some future time, may well decide that Native Title can co-exist with freehold title. As he so rightly stated, "The High Court has quite often over-ruled principles stated in earlier cases".
The right to make laws regarding ownership of land is the basic power of sovereignty. This includes the right to decide what land is to be retained for public use, what may be leased and what will be made freehold. Most people thought that this right belonged to the States (and the Commonwealth in relation to its Territories), but decisions of the High Court have thrown the issue into chaos. Although the High Court states that Native Title exists, no-one seems to know what it is. A title is, in fact, not land but a legal document. Leases for grazing, mining and other purposes are also documents issued under the authority of an Act of Parliament and carry similar but lesser, rights and obligations. In view of the fact that no-one knew that native title existed before the Mabo decision, it is difficult to comprehend how some sections of Acts of Parliament, drafted long before that decision, extinguished them while others did not.
Every owner of a freehold title knows that there are obligations and limitations on what may be done with the land to which it relates. Leases are even more limited. In addition to paying rates, there are many requirements which an owner must fulfill or suffer the consequences, e.g. pay rates, control pest plants and animals, remove fire hazards etc. The right to issue a title, and its conditions, clearly belongs to the government acting on laws made by Parliament on behalf of the people.
On the other hand, no Parliament chose to exercise its right, on behalf of the people, to legislate for native title. The High Court has, quite clearly, usurped the right of Parliament to do so. Unlike legislation that is enacted by Parliaments, there is no statutory definition of native title and there is no clear understanding of the rights and obligations which go with it. Because it is wide open to interpretation, it creates uncertainty and argument. As there is no Act of Parliament setting out the law, disputes will only be resolved by interminable court cases. Courts usually interpret what the law means and resolve uncertainties in the law but in this case, the High Court has created massive doubt and uncertainty.
If, after 230 years, it has been discovered that native title existed prior to that time and has not been extinguished, the basic power to govern is called into question. Parliament must extinguish native title entirely to assert its authority to govern. The rights of aboriginal people who wish to have actual access to traditional land should be accommodated in some other way.
A title to land can be bought and sold. It is
not land, it is a piece of paper. Aborigines want the
right of access to traditional land, not a piece of paper that
can be bought and sold. They just want to know by experience that
they have the right of access – the paper work is for
others. A minute fraction of what has been spent on legal fees
could have established a body to negotiate rights for those who
want physical access to traditional lands.
This body may well be called the Traditional Access Rights Commission to which aborigines could apply to have traditional rights recognised. If the Commission accepts the application, it then would negotiate with the owners of any freehold title and the controlling body of any other land to establish the conditions of access and the compensation to which the owner of the land is entitled.