Raelene Webb QC

This is the text of the presentation by President of the National Native Title Tribunal, Raelene Webb QC of the 11th annual Michael Kirby lecture, presented by the School of Law and Justice at the Southern Cross University on July 20, 2017.

I acknowledge the original custodians of the land on which this campus stands and pay my respects to their elders past, present and emerging, and acknowledge the unique role they play in the life of the region.

I’m very honoured to be asked to present the annual Michael Kirby lecture this year, particularly with the Honourable Michael Kirby present.

Reflecting on my topic — “Re-imagining native title through the eyes of Justice Kirby” — it just struck me just how courageous, or perhaps foolish, it is for me to attempt this topic in his presence. But I have never been lacking courage in these matters. It feels a bit like hang-gliding at the moment. Once you are standing on the edge of the cliff, all strapped in, it’s too late to change your mind.

It’s fitting to be talking about native title this year — the 25th anniversary of the decision in Mabo.

I intend to take you on a journey of native title seen through the eyes of Justice Kirby — exploring how his Honour influenced — and as the case often was, dissented to — the direction in which the doctrine of native title developed during his 13 years of service on the bench of the High Court of Australia.

I will outline where the law of native title had landed in 2009 when Justice Kirby left the bench — far from the native title his Honour had imagined in his judgments.

Finally, I will briefly review recent developments in native title law through three High Court cases which have moved the picture of native title closer to that envisioned by Justice Kirby.

So to step off the cliff!

Mabo and the Native Title Act 1993 (Cth) — A framework for native title

Let’s start 25 years ago with Mabo, when the High Court found “the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands”. With those words, the High Court inserted the legal doctrine of native title into Australian law.

This was a truly watershed moment in Australian legal history, though it was not, of course, without critique and debate. The in-principle recognition of native title underlying Australia’s established systems of property law led to criticism that the High Court had usurped a legislative function, and excited ‘ambition, consternation and vituperation’ from those who thought their interests may fall within the scope of the emerging Mabo principle. As Justice Kirby observed extra-judicially, ‘[r]arely has a decision of an Australian court attracted so much praise and so much calumny.’

Writing in 1994 “In Defence of Mabo”, Justice Kirby, then-president of the New South Wales Court of Appeal, commended the decision for its legal significance and reasoning.

Firstly, his Honour emphasised with approval that the court had “recognised the legitimate claims of indigenous people to native title”, overruling the “inappropriate application of the common law doctrine of terra nullius to the Australian continent”. Indeed, he stated:

“No fair-minded person, with knowledge of the Aboriginal presence in Australia before British settlement, could seriously object to the decision of the nation’s highest court in refusing any longer to build its laws as to land title on a myth and a falsehood.”

Justice Kirby also applauded that the court provided valuable guidance to Australian courts in respect of “the proper circumstances in which long-standing rules of the common law in Australia may be overruled” and “the proper influence which international law and international instruments may play in the development of the common law”.

Finally, his Honour acclaimed the decision, and the surrounding debate, for bringing to the fore “the important issue of the judicial role in a constitutional democracy”. In Justice Kirby’s view, the criticisms of the court in Mabo usurping a legislative function overlooked the legitimate judicial function of judicial creativity in the law.

Ultimately, his Honour observed that the decision was consistent with the duty of the courts to attain a proper balance between stability and adaptation of the common law to new and ever changing social circumstances. He stated:

“Mabo will be viewed as an illustration of the way in which the common law system eventually corrects itself of most errors, and rights most wrongs. Being a system based upon human reason and justice, it eventually attains those goals … [F]ar from being a revolutionary usurpation by the judges of legislative power, Mabo is an example of the common law in action.”

Mabo provided a framework — “a judicial stimulus to action” — for the recognition of Indigenous title, but it left many questions unanswered. Justice Kirby called for the framework to be completed by subsequent case law or legislative enactment.

The Native Title Act was enacted in 1993 as the statutory response to Mabo, and by the time many of those unresolved legal questions reached the High Court, Justice Kirby occupied a seat on its bench.

*Read the rest of Raelene Webb’s speech at Crikey blog The Northern Myth