My reasoning
225 The Minister's submissions should be rejected firstly for the reasons I have already set out: the Minister's position does not, in my respectful opinion, correctly reflect the position taken by Nettle J.
226 A further, albeit minor, point is that it is not possible to reach a firm conclusion whether the only reason Mr Love's matter was remitted was to determine the application of the Mabo (No 2) test to his factual circumstances. Clearly this was one reason. However, Mr Thoms' matter was also remitted.
227 Next, I do not accept the submissions that the position of Nettle J is "controlling". It is correct, as the Minister submits, that Nettle J was the only member of the majority who expressed himself unable to answer the stated factual question in relation to Mr Love: see [288]. Bell J relied on the absence of a contrary position being taken by the Commonwealth when in her Honour's view it would have been appropriate for it to do so if it did not accept the agreed facts would lead to a conclusion that Mr Love was not an alien: see [78]. Gordon J was content to make a finding in Mr Love's favour in part because of the Commonwealth ultimately not taking a position on the agreed facts about Mr Love. At [390], her Honour indicates she would answer the question about whether Mr Love was an alien as "no". Edelman J also relied on the absence of a contradictory position from the Commonwealth and at [468] also indicated he would answer the question in relation to Mr Love as "no". It is also notable that Nettle J did not answer the stated question about Mr Love "yes": that is, his Honour did not seek to apply any "native title" reasoning to the agreed facts so as to produce the conclusion that Mr Love was an alien because the agreed facts established the Kamilaroi People had not been recognised as native title holders.
228 Thus, three of the four majority justices could and did reach a factual conclusion about Mr Love. Yet, the Minister asks the Court to ignore the position of these three judges. The three to one position amongst the majority does not mean, in my respectful opinion, that the reasoning of the single judge who could not reach a factual conclusion (either way) assumes a position which, for the purposes of precedent, should be considered the "most narrow". If anything, given the position taken by the other three majority justices, and the absence of a "yes" answer, his Honour's position could equally be seen as a reluctance on the part of Nettle J to draw any inference from Commonwealth's election not to take a position on the facts about Mr Love. As I explain below, I also do not consider it is correct to describe Nettle J's approach as the "most narrow" of the majority justices.
229 Nor do the two cases relied on by the Minister support the position he advances.
230 Hepples was a case about capital gains tax, and the proper construction and operation of (then) s 160M of the Income Tax Assessment Act 1936 (Cth). In an ongoing proceeding, the then President of the Administrative Appeals Tribunal had stated a case for the Federal Court under s 45(2) of the Administrative Appeals Tribunal Act 1975 (Cth).
231 The stated question was:
Was there, in consequence of the facts recited herein, included in the assessable income of the Applicant for the year of income ended 30 June 1986 -
(a) an amount of $40,000; or
(b) some other amount, and if so, what amount, pursuant to sub-section 160ZO(l) of the Income Tax Assessment Act 1936?
232 A majority of the Full Federal Court (Lockhart and Gummow JJ, Hill J dissenting) answered the question raised by paragraph (a) "Yes".
233 The High Court made some criticisms of the way the question had been stated. Mason CJ said (at 498) that the question had been stated in a general way, which did not really permit it being answered in a way that would give effect to the (different) conclusions of the majority in the Full Court, and that there should have been more than one question. The Chief Justice proposed relief which would remedy this (including by allowing the appeal and substituting orders), even though the Court substantively agreed with the majority in the Full Federal Court. Brennan, Dawson, Toohey, Gaudron and McHugh JJ agreed. The parties were given an opportunity to make submissions on the appropriate orders to be made in such a circumstance, and it is the second and subsequent part of the High Court's reasons, after these further submissions were made, which is the part upon which the Minister relies. In the further submissions, the plaintiff taxpayer submitted there was no majority in the High Court in favour of assessability on either of the two sub-sections of s 160M which were in issue. The taxpayer contended (at 549) a majority cannot be found by "combining some Justices views on sub-s(6) with the views of others on sub-s(7)". In contrast, the Commissioner contended the "ultimate issue" was whether the taxpayer had demonstrated the assessment was excessive and that had been decided in the Commissioner's favour. Whereas, the Commissioner contended, if the Chief Justice's proposal was adopted the Tribunal would be bound to find in favour of the taxpayer.
234 The High Court's supplementary judgment commenced with the following question (at 550):
What order should this Court make when a majority would dismiss the appeal but for discrepant reasons and each of those reasons is rejected by a majority differently constituted?
235 It can immediately be seen from this question that there is no parallel with Love/Thoms, where four justices agreed on the reasoning set out in [81] of Bell J's judgment.
236 Returning to Hepples, the Court pointed out it was dealing with an appeal from the determination of a question of law in pending proceedings in the Tribunal. It was not dealing with an appeal from a final judgment. The Court said (at 551):
An appeal in proceedings of that latter kind has traditionally been determined according to the opinion of a majority as to the order which gives effect to the legal rights of the parties irrespective of the steps by which each of the Justices in the majority reaches the conclusion. But when an issue of law is determined for the purposes of proceedings pending in a court or tribunal, an order on appeal must declare the majority opinion as to the issue of law, irrespective of any conclusion as to the ultimate rights of the parties to which the reasons of the respective Justices would lead.
(Footnote omitted.)
237 While Love/Thoms was not an appeal to the High Court from a final judgment, nor was it a proceeding of the kind in Hepples.
238 In Love/Thoms, the declaration on the "issue of law" was identical in the order on each case stated. As I have found earlier, that declaration contains the ratio decidendi of the decision. Then, in Mr Thoms' case, there was a further answer which gave further effect to the legal rights of the parties, by declaring Mr Thoms to be an "Aboriginal Australian" and therefore declaring the answer to the question whether he is an alien to be "no". In relation to Mr Thoms, this was done "irrespective of the steps by which each of the Justices in the majority reaches the conclusion", to adapt the language of Hepples.
239 Nettle J found himself unable to answer the question whether Mr Love was an alien. That was because (see [287]):
the Commonwealth did not concede that he had been recognised by "elders or others having traditional authority", that is, authority under laws and customs observed since before the Crown's acquisition of sovereignty.
(Emphasis added.)
240 It was not because of an absence of a concession about the survival of native title. That can be seen from the way Nettle J describes the concession about Mr Thoms at [287]:
In the case of Mr Thoms, the Commonwealth did not dispute that, because he is a native title holder, the Aboriginal community of which he is a member must be an Aboriginal society whose laws and customs have relevantly maintained a continuous existence and vitality since the Crown's acquisition of sovereignty.
(Emphasis added.)
241 In other words, the focus of Nettle J's reasoning here is not on the survival of native title as such, but on the survival of the society or community and its traditional laws and customs which, as his Honour had said, is "anterior" to any rights and interests to which those traditional laws and customs might give rise. The survival of an Aboriginal society, his Honour reasons, may well be implicit or inherent in recognition under the Native Title Act. This reasoning by Nettle J is consistent with the passages concerning the applicable legal principles, which I have extracted above at [183], [186] and [187]. In my respectful opinion, his Honour's focus is on the survival of a society or community of a particular kind, and how membership of that community is to be determined.
242 The Court's order in respect of Mr Love made it clear the majority justices could not agree on how the agreed legal principles applied in fact to Mr Love's circumstances. There is nothing in Hepples which suggests, or supports the proposition, that a subsequent Court, lower in the judicial hierarchy, must in such circumstances consider the reasoning of one of the four judges as somehow binding in subsequent and different fact finding in a different proceeding, especially where three judges of the majority did find facts supporting an outcome for Mr Love, and where the case has a clear ratio decidendi.
243 The other authority relied on by the Minister is Perara. That appeal from conviction concerned the admission of certain evidence, and the jury direction which related to that evidence. The Full Court of the South Australian Court of Criminal Appeal found by majority that there was an error in the jury direction but between them disagreed whether the proviso applied (that is, that no substantial miscarriage of justice had occurred). The third judge found no error in the jury direction, so did not consider the application of the proviso (relevantly contained in s 353(1) of the Criminal Law Consolidation Act 1935 (SA)). The appeal against conviction was dismissed. In the High Court, the appellant submitted that because two judges had found error, the dismissal of his appeal could not be sustained by s 353 unless two judges concluded there had been no substantial miscarriage of justice. By a notice of contention, the Crown contended there was no error in the jury directions.
244 A majority of the High Court (Kiefel (as her Honour then was), Bell, Gageler, Keane and Gordon JJ) upheld the Crown's contention. However, the majority split on the appellant's argument. Kiefel, Bell, Keane and Nettle JJ (Nettle J otherwise being in dissent on the Crown's contention) all held there needed to be a majority in the Full Court on two questions - whether there was error justifying setting aside the verdict and second whether the proviso applied to avoid that outcome. The majority found the appellant was correct to submit a majority of the Full Court had not determined the proviso applied, so there was no support for an order dismissing his appeal. Gageler and Gordon JJ dissented, on the basis there was a single question before the Full Court - should the appeal be allowed or dismissed - and the order dismissing the appeal was made in accordance with the opinion of the majority as to the answer to that question (ie the one judge who relied on the proviso and the one judge who found no error in the jury direction).
245 The majority on what I might call the "orders question" saw the issue as essentially one of statutory construction, on the basis that the legislature had required "more" than the single question whether an appeal should be allowed or dismissed. However, their Honours added (at [41]) that their conclusion was consistent with Hepples, which their Honours described as dealing with
the appropriate course when a majority of a multi-member court "would dismiss [an] appeal but for discrepant reasons and each of those reasons is rejected by a majority differently constituted."
246 The passage at [41] is the passage relied on by the Minister. Quoting (at [42]) the passage from Hepples I have extracted at [236] above, their Honours appeared to consider the task under s 353(1) fell into the same category as a referral on a question of law. No further explanation was given for the posited similarity.
247 It is unclear how [41], or [42] of Perara, advance or support the Minister's submissions. I do not consider they go any further than Hepples, and I have explained why I do not consider that is on all fours. To be clear, in Love/Thoms the orders made on the case stated in each proceeding, as to the applicable legal principles, were made by a four member majority, for the joint reason given at [81] of Bell J's reasons, which in turn was expressed again in the orders. Perara is a quite different situation.
248 In Perara, the reasons of both dissenting judges are instructive on the issues of principle. Gageler J commenced with propositions (at [73]-[74]) that:
The institutional responsibility of a court is to produce an order that resolves the justiciable controversy before it. That is the court's "unique and essential function". In the performance of that function by a multi-member court, each member of the court has an individual duty to give effect to his or her own true view of the law and of the application of the law to the facts of the case.
The individual members of a multi-member court will sometimes disagree. Sometimes disagreements will be resolved by dialogue, one member ending up convinced by another to take a different view; sometimes not. Where disagreements are not resolved, the law supplies a decision-making rule which allows the court to produce the order that is necessary for its institutional duty to be fulfilled.
(Footnotes omitted.)
249 Explaining that this rule is different from the backward-looking task of extracting a ratio decidendi, because this rule must be applied at the time of the decision to the exercise of judicial power in making the order, Gageler J said (at [75]):
Every case must have an outcome, but not every case need have a ratio decidendi.
250 In my respectful opinion, Love/Thoms has both. In Perara, the "decision-making rule" was supplied, in Gageler J's view, by s 23(2) of the Judiciary Act 1903 (Cth), which is directly applicable to the High Court's appellate jurisdiction. His Honour found the holding in Hepples was an application of the "same underlying decision-making rule as informs the disposition of an appeal from a final judgment which concludes the legal rights of the parties". His Honour identified this as a "majoritarian decision-making rule" and concluded (at [79]) that:
The majoritarian rule is not applied in respect of conclusions which each member has reached on issues arising in the process of reasoning to that opinion. The "question", in short, is as to the order not the reasons.
(Emphasis added.)
251 From [80], Gageler J then applied this approach to determine what the "question" was in s 349 of the Criminal Law Consolidation Act 1935 (SA). That analysis is not presently relevant, but his Honour concluded the "question" was the same as that in s 23(2) - namely, what order should the Full Court make. This is what his Honour described at [88] as the "end-point" of the Court's reasoning. That is why his Honour held there was a single question - should the appeal be allowed or dismissed.
252 Gordon J's dissent on the "order" issue commenced from the proposition that appeals (here to the South Australia Court of Criminal Appeal, but also applicable to the High Court) are brought against orders not reasons. In this way her Honour found (at [144]) that the "question" before the Full Court was whether to allow or dismiss the appeal. However at [153] her Honour did touch on a situation closer to the present one in Love/Thoms:
The issue concerning the appropriate orders to be made where judges are in disagreement is separate from the question of application of the proviso. In an appeal where judges' reasons are divided, an expedient must be adopted by the court to dispose of the case and give effect to, and conclude, the parties' legal rights.
(Footnote omitted.)
253 Aside from s 23(2) of the Judiciary Act, her Honour cites Tasmania v Victoria [1935] HCA 4; 52 CLR 157 at 183, where Dixon J discussed the need for an "expedient" in a situation where members of a Court are equally divided, discussed historic examples and referred to s 23(3) of the Judiciary Act as the expedient applicable in the High Court. Rich and Dixon JJ (but not a majority of the High Court) found that a decision given on equal division of opinion in the High Court is not a precedent binding on this Court in subsequent cases.
254 Love/Thoms is not, of course, a case where the Court was equally divided. It is a case where there was a four member majority opinion that Aboriginal Australians, understood by reference to Brennan J's test in Mabo (No 2), are not aliens for the purposes of laws made pursuant to s 51(xix). It is a case where the differing reasoning of the majority justices explains why the application of those legal principles to the facts meant the majority was "unable … to agree" on findings of fact which would determine the rights of Mr Love and the Minister. If there is any "expedient" apparent in the majority reasoning, it is the statement of Bell J on behalf of all the majority at [81]. Otherwise, the outcome of the factual disagreement was the remitter of Mr Love's case for further fact finding. None of that affected the making of orders reflecting the legal conclusion reached by the majority. Nor does it affect the ascertainment of the ratio decidendi of the case. Nor does this circumstance suggest, or authorise, an elevation of the reasons of Nettle J to a more binding position on single judges at trial level than the reasoning of the other justices in the majority, assuming (contrary to my own conclusions) that Nettle J's reasons should be understood as the Minister submits.
255 The Minister submitted a single judge of this Court is bound to adopt a "native title" approach because first, that is the approach of Nettle J, and second because his Honour's reasoning is the "minimum position":
[I]t doesn't really matter where one plots Gordon, Bell, and Nettle JJ, because - sorry, and Edelman - because Nettle Js position is clearly the minimum position that is consistent with the orders of the court, and that is what will give rise, ultimately, to the binding authority of the decision. And that is supported by paragraph 81.
…
his Honour found that Mr Thoms had met that test, and Mr Love had not, and the all applied the same test, we would say, but three of their Honours were prepared to draw inferences that Nettle J was not prepared to draw.
256 As I explain above, the Minister's submissions imply the only reason Nettle J did not agree was because Mr Love was not a native title holder. In fact, in my opinion, the reasons given at [287] (extracted at [239] above) are not about being a native title holder. It is about the kind of community which has provided the recognition. Without further facts being agreed in relation to the Kamilaroi People, Nettle J could not apply the concepts to which his Honour had given prominence in his reasoning, about a society united in its observance of traditional law and custom. In Mr Thoms' case, agreement as to an existing determination of native title implicitly provided a sufficient factual basis for an inference about the society comprising the Gunggari People.
257 The principal authority relied on by the Minister for his contentions about the "minimum position" being what is binding in terms of precedent is Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1422 at [35], [40], a decision of French J, as his Honour then was.
258 Long was itself a case about the reach of the aliens power. Mr Long was a national of the United Kingdom, but a long-term resident of Australia, who had never taken out Australian citizenship. His visa was cancelled because of the commission by him of serious criminal offences. He contended he was not an alien and so was not amenable to the visa cancellation and deportation or removal powers in the Migration Act.
259 As French J noted at [11], referring to Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; 37 CLR 36, it was common ground that Mr Long was no longer an immigrant because he had been absorbed into the Australian community. Long was decided before Shaw v Minister, but not long after Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391. Re Patterson was the case which created what Gageler J described in Love/Thoms at [132] as a "constitutional cul-de-sac" where, for a brief period of time, the High Court declared the law to be that some British citizens who migrated to Australia during certain periods and became permanent residents but not Australian citizens were outside the reach of the aliens power. Re Patterson overruled Nolan. Shaw v Minister effectively re-instated Nolan, and held, by majority, that such people were within the reach of the aliens power.
260 Nevertheless, at the time Long was decided, French J had to grapple with the authority of Re Patterson. One difficulty for French J was that the majority in Re Patterson (Gaudron, McHugh, Kirby and Callinan JJ) adopted differing reasoning to support orders quashing the Minister's decision to cancel Mr Taylor's visa. McHugh J decided the case in Mr Taylor's favour on administrative law rather than constitutional grounds (hence the relief by a majority of four), although McHugh J did agree, for reasons his Honour gave, that Nolan should be overruled. Nevertheless, this was clearly obiter in McHugh J's reasons. This meant on the constitutional question of the reach of the aliens power to people such as Mr Taylor, the Court was evenly divided between the rest of the majority (Gaudron, Kirby and Callinan JJ) and the minority (Gleeson CJ, Gummow and Hayne JJ). What then did this mean for a single judge in the position of French J, coming to apply Re Patterson to a person like Mr Long, who contended he was in an analogous factual situation to Mr Taylor in Re Patterson?
261 In Long at [34], French J identified "at least two views" supporting the conclusion that Mr Taylor was not an alien - one view discernible from the reasons of Gaudron, Kirby and Callinan JJ, and a different view discernible from the reasons of McHugh J. The former view meant British subjects absorbed into the Australian community prior to May 1987 were not aliens for the purposes of s 51(xix). The latter (McHugh J) meant those British subjects born in the United Kingdom and living in Australia in 1973 became subjects of the Queen of Australia (because, McHugh J found, of the effect of the Royal Style and Titles Act 1973), and therefore (at least) those British subjects who arrived before 1973 were not aliens.
262 This meant, French J found at [35], there was no "clear common ratio" on when a British subject was not an alien. His Honour posed the question for himself, sitting as a single judge as (at [38]):
The decision in Re Patterson is not binding authority for the proposition that a British subject arriving in Australia before 1 May 1987, who had been absorbed into the community, is not an alien. It is therefore not open to this Court simply to apply the principle enunciated by Gaudron, Kirby and Callinan JJ on the basis that it is bound to do so. The question is whether it is appropriate, at first instance in this Court, to apply that principle.
(Emphasis added.)
263 At [39], French J looked to the (then) more recent High Court decision of Re Immigration and Multicultural Affairs, Minister for; Ex parte Te [2002] HCA 48; 212 CLR 162 to see if that assisted in understanding the High Court's own view about whether Re Patterson created a binding precedent about the scope of the aliens power. French J found in substance the divergence between various justices continued and Te did not assist.
264 French J's conclusion at [40] was:
In my opinion, there is no binding principle in Re Patterson which assists me to a decision in this case. I consider that I should not apply to this case the proposition that British subjects living in Australia were not to be regarded as aliens until after 1987. In my opinion the appropriate position to take is the minimum position adverted to by McHugh J (although not definitively). On that position the division of allegiances between the Queen of the United Kingdom and the Queen of Australia became clear and the status of British subjects who were not Australian citizens also became clear as aliens for the purpose of the Constitution in 1973 upon the enactment of the Royal Style and Titles Act 1973. This approach is the most conservative approach to the decision in Re Patterson which, having regard to its divergent reasoning, should be seen as disturbing pre-existing law to the least extent necessary consistent with the outcome. That position is reached by following the reasoning of McHugh J and treating it as definitive.
265 This is the passage upon which the Minister relies, but the emphasis is mine.
266 I accept that consideration of French J's approach in Long is instructive. However, the situation facing his Honour in Long, because of Re Patterson, is not the same situation facing this Court because of Love/Thoms.
267 In my respectful opinion, if I am wrong in my interpretation of Nettle J's reasons, and the Minister's interpretation of his Honour's approach is correct and it is a native title approach, then I am nevertheless not bound sitting as a single judge to adopt the reasoning of Nettle J. The approach taken by French J in Long arose in circumstances quite different to the present proceeding, and to the circumstances of Love/Thoms.
268 I reach that conclusion for the following reasons:
(a) Unlike French J in Long, I have concluded that there is a legal principle flowing from Love/Thoms which binds me as a single judge. It is the proposition in [81] of Bell J's reasons, which is the same proposition as found in the Court's orders answering the question of law found in each of the stated cases. The binding principle is:
Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70) are not within the reach of the "aliens" power conferred by s 51(xix) of the Constitution.
(b) The application of this binding principle to the facts of a particular case will depend on the evidence adduced. As I have explained above, it will also depend on the correct understanding of what was said by Brennan J in Mabo (No 2), derived from his Honour's own reasons, but of course read and understood in the context of its application by all members of the majority in Love/Thoms to findings about when a non-citizen who identifies as Aboriginal is not an alien. Just as I should take account of the findings made by Edelman J, and how his Honour applied the Mabo (No 2) test, so I should take account of the findings by Bell, Gordon and Nettle JJ and how each of their Honours applied Mabo (No 2). Contrary to the Minister's submissions, no one line of reasoning by any single member of the majority will "control" the findings I must make on the evidence before the Court about Mr Helmbright. Those findings are controlled only by a correct understanding of [81] of Love/Thoms and a correct understanding of the Mabo (No 2) test.
(c) Nettle J's reasoning was founded on the proposition that the Crown has a "unique obligation of protection" to Indigenous peoples, and that this obligation of protection was inconsistent with the concept of alienage. His Honour was the only judge to develop and adopt that analysis and accepted (at [273]) that this obligation of protection "has not hitherto been seen as placing those members beyond the bounds of alienage as that term is ordinarily understood". At [252] Nettle J went as far as to say that "it necessarily follows that some individuals would not be aliens even if denied Australian citizenship by statute" (original emphasis).
(d) This analysis did not create "minimum" disturbance to pre-existing law as it was an entirely new analysis. It is novel, and the first time there has been judicial recognition in the High Court of an "obligation of protection" in the Crown in right of Australia towards Australia's Indigenous peoples. Indeed, the Commonwealth expressly contended the Court should not decide the question of any Crown obligation of protection as it had not been put forward by any party or intervener. It is difficult to apply the Minister's adjective of "conservative" to Nettle J's analysis. If "conservative" is no more than another description of "minimum disturbance", I do not agree that is an accurate description of Nettle J's approach.
(e) Unlike the situation in Long, there is no pre-existing law about whether non-citizens who identify as Aboriginal Australians are aliens. At [294] Gordon J said:
The specific question before the Court - whether Aboriginal Australians, born overseas, without the statutory status of Australian citizenship and owing foreign allegiance, are aliens within the meaning of s 51(xix) - has not arisen before. No previous Australian court has considered that question. There is no binding authority.
(f) See also Bell J at [63]. In contrast, the "pre-existing law" to which French J referred in Long concerned the position of non-citizens who were British subjects, and about which there had been specific pronouncements by the High Court about. It was to that law his Honour referred when referring to the need to create "minimum disturbance".
(g) The Mabo (No 2) test is consistent with what Brennan J said in the Tasmanian Dam Case, and is broadly consistent with the other approaches summarised by Bromberg J in Eatock. It does refer to mutual recognition by those with traditional authority, which is a distinct requirement from some of the other tests. That distinct requirement does bind me as a single judge.
(h) If, contrary to my view of his Honour's reasons, Nettle J is to be taken as imposing a second, native title requirement, then this is in my respectful opinion a novel proposition, and a significant rather than a minimum disturbance to previous legal approaches to Aboriginality. It is not a "narrow" approach to the previous law concerning Aboriginality. It is a novel approach. On this hypothesis, the reasoning of the three other majority justices is more consistent with previous law about Aboriginality.
269 It is necessary to say something about the forensic realities of the approach now urged upon the Court by the Minister. Unlike the situation for Mr Thoms, in this proceeding, there is no existing determination of native title in favour of the north-eastern clans of Tasmania, nor those who are represented by mtwAC (if there is a difference).
270 The Minister accepted that on a native title approach it would be up to Mr Helmbright to prove, on the balance of probabilities I infer, that as an individual he is entitled to be recognised as a native title holder under the Native Title Act. Or, to turn the proposition around, that Mr Helmbright could prove that recognition by mtwAC, on behalf of the Aboriginal peoples of the North East nation, was recognition by a society or community entitled to be recognised as common law holders of native title under the Native Title Act.
271 Thus, it appears the Minister's approach superimposes in particular the terms of s 223 which provide:
223 Native title
Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
Statutory rights and interests
(3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.
Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act.
Subsection (3) does not apply to statutory access rights
(3A) Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).
Case not covered by subsection (3)
(4) To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):
(a) in a pastoral lease granted before 1 January 1994; or
(b) in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.
272 I raised some of the difficulties I perceived in this approach with senior counsel for the Minister during the hearing. Of course, the situation is relatively straightforward for a non-citizen who is recognised as a member of a group which already holds native title, for the reason identified by Nettle J in Love/Thoms at [287]. The difficulties arise outside that circumstance. In substance, if a party proves the matters in s 223 in relation to particular land and waters, then subject to extinguishment, the party has proven matters which would usually result in a determination of native title over that land and those waters. A non-exhaustive list of the difficulties to which this gives rise includes:
(a) How an individual can prove native title when under the Native Title Act, the only party competent to seek a determination of native title is an "applicant" authorised by a claim group to bring an application for such a determination of native title: see s 61 and s 251B of the Native Title Act.
(b) Similarly, since native title rights are rights in rem, what is to happen about matters such as the third party notification processes under, for example, s 66 of the Native Title Act.
(c) Whether the state or territory in which the lands and waters of the relevant group are situated should be heard on any such application and whether any other persons with proprietary interests would need to be heard.
(d) To maintain some alignment with the Native Title Act, is it this group or community which must prove it is entitled to be recognised as holding native title, rather than the non-citizen? If so, how is that to be accommodated in a proceeding about the question of the alienage of a non-citizen?
(e) How is any trial to be conducted, in terms of evidence from other individuals who are members of the group, expert anthropologists and historians, on country evidence, bearing in mind most native title trials occupy many stages over years, and are extremely costly.
(f) Whether the Commonwealth could be permitted, in pursuit of any opposition to a declaration that a non-citizen is not an alien, outside the framework of the Native Title Act, to contest a contention of native title over lands and waters - especially one to which a state government might otherwise have been prepared to agree in some form through a consent determination process? For example, see the determination of native title over the City of Adelaide: Agius v State of South Australia (No 6) 2018 FCA 358.
(g) If an individual like Mr Helmbright seeks to prove native title using s 223 but outside the framework of the Native Title Act, and does so, are he and the group of which he claims to be a member entitled to a determination of native title under the Native Title Act and how that is to be implemented when all the steps under the Native Title Act have not occurred?
(h) Conversely, whether a finding of failure to prove native title could result in an application by any proprietary interest holder in the relevant land and waters for a negative determination of native title under the Native Title Act.
(i) How are the boundary disputes between different Indigenous groups, which are a reality in native title litigation, to be factored into this forensic exercise in relation to alienage?
(j) If a group to which a non-citizen is said to belong has a native title application on foot, but is found not to hold native title at first instance, and that finding is reversed on appeal (or vice versa), does a person's alienage status also change with the changing native title findings of the Court?
273 In my respectful opinion, based on the assessment of the majority reasoning I have set out, no intention can be attributed to the majority of the High Court in Love/Thoms that exercises of this kind need be embarked upon, or these considerable difficulties confronted. I accept that Nettle J did refer to "difficulty of proof" (at [281]), but his Honour did so in the context of observing, favourably to Mr Love and Mr Thoms, that difficulties of proof were no justification to avoid what his Honour saw as the correct conclusion that an Aboriginal Australian was not an alien. As the application of the Mabo (No 2) test to Mr Helmbright's circumstances demonstrates, there are still considerable difficulties with proof.
274 At [282], Nettle J accepted that in order to avoid the "invidious consequence" of two classes of Aboriginal people, a legislative solution might be required. However, nowhere in his reasons did his Honour touch on the kinds of difficulties, at trial level, to which I have referred above. I do not consider it can be inferred his Honour intended, by his reasoning, that some kind of native title trial, outside the framework of the Native Title Act (or inside it, but not in accordance with it), would need to be undertaken.
275 There was no occasion for any of the majority justices to descend into that level of detail, given their primary focus. But this is now the reality of the approach the Minister urges at trial. In my respectful opinion, the approach for which the Minister contends is not an intended or inevitable consequence of the majority ruling in Love/Thoms, and would likely throw the administration of the Native Title Act into disarray. It is not required by the majority reasoning in Love/Thoms, and is not appropriate. Further, for the reasons I have given, if I am wrong in those conclusions, adopting the approach of Nettle J as the Minister contends it to be does not inflict "minimum disturbance" on existing law.