Some ramifications of the decision for criminal law
The High Court's decision in Mabo No.2 has led to fresh debate concerning the applicability of criminal laws to Australia's Indigenous peoples and the extent to which certain criminal laws, particularly those which criminalise fishing and hunting activities, should now to be construed as subject to native title.
The argument that Australia's criminal laws do not apply to Aboriginal people was first canvassed in R v Murrell  Legge 72. Counsel for Jack Congo Murrell put the following submission to the Court, one which clearly challenged the notion of Australia as terra nullius:
'This country was not originally desert, or peopled from the mother country, having had a population far more numerous than those that have since arrived from the mother country. Neither can it be called a conquered country, as Great Britain was never at war with the natives, nor a ceded country either; it, in fact, comes within neither of these, but was a country having a population which had manners and customs of their own, and we have come to reside among them; therefore in point of strictness and analogy to our law, we are bound to obey their laws, not they to obey ours. The reasons why subjects of Great Britain are bound by the laws of their own country is that they are protected by them: the natives are not protected by those laws, they are not admitted as witnesses in Courts of Justice, they cannot claim any civil rights, they cannot obtain recovery of, or compensation for, those lands which have been torn from them, and which they have probably held for centuries. They are not therefore bound by laws which afford them no protection.'
The three judges of the NSW Supreme Court rejected the submission, holding that Aboriginal people possessed no sovereignty and were subject to the received criminal law.
The next major challenge to this authority would not come until 1976, in the case of R v Wedge  1 NSWLR 581, where it was argued that Aboriginal people were a sovereign people who were not subject to the criminal law of another sovereign, namely that of the British Crown. The submission was rejected, Justice Rath holding that:
'The Colony of New South Wales was founded by settlement, not conquest or cession. Upon settlement there was, in the Colony, only one sovereign, namely the King of England and only one law, namely English law; and, upon settlement, in consequence of instructions from the King to Governor Phillip, the Aboriginal people in the colony became the subjects of the King and, as such, were not only entitled to the protection of the law, but became liable for breach of the King's peace in accordance with the law.'
The decision of the High Court in Mabo No.2 encouraged further challenges to these authorities. Although the court was not asked to and did not question the established position that British sovereignty was acquired through 'settlement', Blokland and Flynn argue that the court's rejection of the terra nullius and acceptance that Aboriginal people had their own system of laws 'raise the spectre of the classification of Australia as a settled colony being reviewed.' The authors acknowledge both that '[t]here is no indication in Mabo that the High Court is prepared to recognise Aboriginal sovereignty' and that the High Court is unable to inquire into the actual acquisition of sovereignty. Nevertheless, the authors note that the court may be able to review the manner of acquisition:
'Two alternatives present themselves. First, it might be accepted that Aboriginal sovereignty survived "settlement" and co-exists with Crown sovereignty. This approach prevailed in relation to the indigenous people of the United States who are said to enjoy an inherent or dependent sovereignty ... Secondly, Australia might be re-classified as a "conquered" colony ...it could be argued that Aboriginal people, in so far as they adhere to Aboriginal law, are not subject to the received criminal law.'
[See Blokland and Flynn, 'Five Issues for the Criminal Law After Mabo' at pp216-217]
Challenges to the Australian courts' jurisdiction to prosecute Indigenous peoples have followed, some of which are discussed by Sean Flood in his monograph 'Mabo: A Symbol of Sharing'. All have been unsuccessful. In Walker v NSW, the Chief Justice of the High Court was forthright in his rejection of the challenge:
'there is nothing in the recent decision of Mabo v Queensland (No. 2) to support the notion that the parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent. Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people. Indeed, Mabo (No. 2) rejected that suggestion.' Walker v NSW (1994) 126 ALR 321 at 322.
While cases challenging the jurisdiction of Australian courts to prosecute indigenous defendants have been uniformly unsuccessful, the Mabo No.2 decision has provided a basis for the argument that criminal statutes should be interpreted as subject to the rights of native title holders. As Blokland and Flynn state:
'[a]n area of immediate practical application of this principle is the interpretation of statutes which seek to regulate conservation and the regulation of wildlife and fishing. Those statutes potentially criminalise hunting and fishing activities which, in a given case, may form part of the content of native title rights.' [Blokland and Flynn, 'Five Issues for the Criminal Law After Mabo' at pp 218-219]
It is this argument that was raised in Mason v Tritton (1994) 34 NSWLR 572. Mr Mason was an Aboriginal man charged with having more than the permitted quantity of abalone. Mr Mason's defence was that his fishing of the abalone was an exercise of his traditional right to fish and that the Regulation under which he had been charged did not apply to him because it did not reveal a clear and plain intention to extinguish this native title right. The court agreed that fishing rights form part of native title, as explicitly recognised in section 223(2) of the Native Title Act, 1993 (Cth). However, Mr Mason failed to provide sufficient evidence to substantiate his claim that his taking of the abalone was the exercise of a traditional native title right. As Kirby stated at pages 594-595:
'The outcome of this appeal can be simply stated. Mr Mason, in my view, established the ingredients necessary in law to succeed in a claim for native title in respect of a right to fish. But he failed to provide sufficient evidence to prove that he actually had been exercising such a native title. ...In the end, therefore, this case must not be seen as one about native title as such. This case is really about proof...'.
To that extent, the argument remains open. On 20 November 1998 the High Court granted leave for Murrandoo Yanner to appeal his conviction for the killing and eating of two crocodiles, a decision which should clarify the inter-relationship between the exercise of native title hunting and fishing rights and the constraints of conservation legislation.
The recognition of native title was an integral component in the defence of Galarrwuy Yunupingu against charges of assault and criminal damage. Mr Yunupingu argued that his actions were in accordance with rights (namely native title rights) which were recognized by the law in the Northern Territory and, secondly, that he honestly believed that both Yolngu and Northern Territory law authorised his actions. As Levy notes, the
'two defenses under ss 24 and 30(2) of the Criminal Code Act (NT) both ... rely on native title and related rights being characterised as a form of property... Both defenses are available to all Australians. All Australians may rely on their lawful property rights to defend a criminal charge, although obviously only Aboriginal people may rely on native title property rights for such a defence." (Ron Levy, 'Native Title and the Criminal Law: the Defence of Galarrwuy Yunupingu', (Indigenous Law Bulletin July 1998, Vol. 4 no. 13 at pages 11-12.)
The magistrate placed considerable weight on the fact that the incident took place on Aboriginal land held under the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA). The magistrate decided that the ALRA impliedly recognised Yolngu law and thus did not have to address the question of whether the common law recognised Yolngu traditional rights. Both defenses were upheld by the court. The Crown has appealed to the Supreme Court of the Northern Territory.
Keywords: Aboriginal Land Rights Act (Northern Territory)(1976), Australian Court Case, High Court judgement, High Court of Australia, Mabo judgement, Mason v Tritton, 1994, native title, Native Title Act (1993), Northern Territory, R v Murrell (1836), Supreme Court of NSW, Supreme Court of the Northern Territory, terra nullius, United States of America, Walker v NSW (1994), Yanner Murrandoo, Yolgnu, Yunupingu, Galarrwuy
Author: Kenna, Jonathan