Gary Humphries picked his audience well this week when he said that “”Son of Mabo” could threaten titles in Canberra. Canberrans are notoriously property-conscious.
Humphries was jumping on the Goss woomera that said existing leasehold and other less-than-freehold titles could be subject to Aboriginal claims. This theory is being posed by lawyers for the Wik people in Cape York. It is called “”Son of Mabo” because it takes the Mabo case a bit further.
Mabo essentially restricted indigenous claims to areas where no-one else had any title _ what was called Crown land. The judges said that freehold and long leasehold extinguished indigenous title.
Son of Mabo, however, is a claim that leasehold might not be enough to extinguish indigenous title, especially if the leasehold is from the Crown. The Wik lawyers have dug up a 1977 English trust case to support their argument. That case was a dispute over phosphate profits extracted from Ocean Island.
The Ocean Islanders claimed a breach of trust. The English court said that at common law governments could be held accountable for breaches of trust against indigenous people, provided it could be shown they had a duty to act on behalf of and in the best interests of the indigenous people, as was the case on Ocean Island.
Most legal advice is that the doctrine will not apply to the Wik claim, or that if it does it will not defeat the mining lease, but merely expose the Queensland Government to a claim for damages for breach of trust in giving the miners a lease over Wik land.
It will depend on whether it can be shown that Queensland had a duty of trust to the indigenous people.
To apply this doctrine to the ACT is drawing a very long bow indeed. The only similarity is that the ACT has a leasehold system. Some people have often thought that leasehold (even for 99 years) is somehow not the full quid. On self-government in the Northern Territory all the 99-year leases were converted to freehold because of this view.
It seems to me that neither Mabo nor Son of Mabo has any application in any of the ACT, with the exception of Namadgi, and even then it is doubtful. We can all sleep safely in our beds, if not our tents.
Son of Mabo does not apply because none of the ACT was held as Aboriginal trust land in the sense that Ocean Island was.
Mabo itself does not apply because with the exception of Namadgi, the whole of the ACT was granted as freehold or long leasehold in the mid-19th century which on any reading of Brennan’s majority judgment would have extinguished the indigenous title.
Even with Namadgi (which is basically that area left in the ACT which was never granted as freehold or leasehold) a Mabo claim is very dubious. The sort of continuous attachment to the land required by the judgment is not there.
Humphries argues that if the ACT is so certain there is no claim, why not legislate to make it clear that existing leaseholders have secure title. He says people are frightened about the implications of the case. He made similar comments earlier in the year. Wayne Goss has argued that even if the claims are unlikely to succeed they are very costly and inconvenient to defend so it is better to legislate.
It sounds logical, but this is murky water indeed. Governments should not extinguish property rights or the right to sue for common law rights without compensation. This is fundamental stuff in a liberal democratic society. The ACT Attorney-General, Terry Connolly, has pointed out that property rights are a tenet of the Liberal Party’s philosophy.
It seems contradictory to uphold property rights on one hand and then call for legislation to extinguish them in the case of Aborigines on the other. Even if there is only a scintilla of a chance of an Aboriginal claim in the ACT being successful, you would have to assess it and compensate for it before extinguishing it.
The ACT Self-Government Act and the Federal Constitution make that quite clear. Section 23 of the Act says: “”The Assembly has no power to make laws for the acquisition of property otherwise than on just terms.”
Given that the only Aboriginal claim against the ACT has not even been served on the Government and that on any view it is a very weak one, it seems unnecessarily inflammatory to suggest that suburban homes are in any way under threat. It would be even sillier for the ACT to legislate in these circumstances: unnecessarily stirring up a claim for compensation that need not arise. To date the Chief Minister, Rosemary Follett, and her Government has behaved with commendable restraint on Mabo, unlike other heads of government both Liberal and Labor.
Mr Humphries should take a long walk around Canberra’s suburbs to see if there is any evidence of continuous Aboriginal attachment to the land. As he goes he should re-read Brennan’s judgment, re-read the Self-Government Act and read that classic nursery rhyme about unnecessary fear which goes something like: “”As I was going down the stair I met a man who wasn’t there. He wasn’t there again today I wish that man would go away.”