I think the ultimate goal of “Native Title” is to give the Crown sovereignty over the land.

Here is the logic behind this idea;

1. Starting point (time of “British Discovery” formal claim).

Aboriginal peoples collectively hold ALL rights to the land.

• They have the rights to do A.
• They have the rights to do B.
• They have the rights to do C.
• They have the rights to do D.
• They have the rights to do E.

etc. – where this list infinite because they have allodial title and hold ALL rights as sovereigns of that territory.

“The company” (British fleets and the Australasian colonies) acting in the right of the Crown, then claim a right of Discovery under the Discovery Doctrines. As the land is not a completely Terra Nullius, this gives them an exclusive (against other European powers) right to Treaty or to purchase land from the inhabitant sovereigns. It does not give the Crown sovereignty over the territory.

2. Fast-forward to after the “overturning of Terra Nullius”.

Aboriginal people under colonial occupation make a “Native Title claim”. They claim that;

• They have the rights to do A.
• They have the rights to do B.

This type of claim is very limited. Only forms of “traditional” land use is allowed. It’s sometimes called a ‘bundle of rights’, it is a subset of all possible land rights.

Native Title claimants are, in a way, granting the following land rights to “the company”;

• Rights to do C.
• Rights to do D.
• Rights to do E…

etc. and anything that the Native Title group don’t claim themselves. When Native Title claimants omit these rights from their claim, these residual land rights become “nobodies”, or terra nullius.

Before the Native Title claim, Aboriginal people hold ALL land rights. They couldn’t grant land to Batman, so they cannot have been surrendered historically – well at least not to any British Subject before Mabo2 overturned the Crown’s right of preemption. Interesting side-note, in the tabloids a few years ago was a case where land could have been surrendered historically, but it was to a Maori group in 1811, before the Treaty of Waitangi in 1840 (so to non-British subjects, non-Europeans). I don’t know what the outcome of that was, the story overall sounds made up.

After making the Native Title claim, Native Title holders have affirmed rights to do A and B. “The company” now has affirmed rights to C, D, E .etc.

Native Title claimants have being tricked into granting “the company” most of their land rights.

3. This is where Pratt-Yorke decision comes in.

So far – Aboriginal people – by claiming Native Title – have issued a land grant to “the company” for the uses of C,D,E etc. By “the company”, this means something like the British East India company, but Australia is colonial and acts in the right of the Crown so for this purpose it is similar to “the company”.

Here’s some of the Pratt-Yorke decision (this is about the British East India company but I think it is one of the bases of Native Title)

“(2.) The opinion of the attorney, and solicitor-general, Pratt, and Yorke, that the king’s subjects carry with them the common law, wherever they may form settlements. In respect to such places as have been, or shall be, acquired by treaty, or grant, from any of the Indian princes, or governments, your majesty’s letters patent are not necessary; the property of the soil vesting in the grantees, by the Indian grants, subject only to your majesty’s right of sovereignty over the settlements, as English settlements, and over the inhabitants, as English subjects, who carry with them your majesty’s laws, wherever they form colonies, and receive your majesty’s protection, by virtue of your royal charters.”

It is claimed Australia was settled, not conquered. This quoted part of the decision is about settlement (also in the same decision it has the different rules for conquered territory)

.By claiming Native Title and applying Pratt-Yorke logic;-

• Aboriginal people grant “the company” land title
• The property of the soil is now vested in “the company” by that “Indian grant”
• “the company” can now form settlements, and use the land
• This allows settlers to carry “your majesty’s laws” to that settlement.
• This in turn grants “your majesty’s right of sovereignty over the settlements” (burdened only by the Native Title holders claimed land rights).

In a nutshell – by claiming Native Title Aboriginal people are;

• giving the Australian States land rights (C, D, E, etc) for free
• giving the Crown a form of sovereignty over “settlements” on that land
• often includes a “past-acts” clause

It’s a dog deal.

But there is still unfinished business. The Pratt-Yorke opinion says;

subject only to your majesty’s right of sovereignty over the settlements, as English settlements, and over the inhabitants, as English subjects.

The form of sovereignty given to the Crown (with Native Title) is limited. Crown sovereignty is only over the “English subjects” and “English settlements”, and not over the “Indian princes” or the territory itself. Native Title only fixes part of the problem – hence the need for constitutional reform to reconcile the bigger problem of colonisers gaining sovereignty over the territory, and over the peoples of the territory.

The Wik decision

Think about this logic above, and how the Wik decision affects land claims in light of this.

Pastoral leases do not involve intensive planting or building of permanant structures. If you compare a typical pastoral lease area with an area that has been traditionally firestick-farmed for Kangaroo in terms of building permanent structures and tiling fields, there is little difference. It’s hypocritical and illogical for settlers to claim an area initially unused because there are no planted fields, to then go claim that the area is now used – even though there are still no planted fields or structures.

This is a big problem for the colony because much colonial territory is pastoral leases. The colony has not done it’s job of “settling” very well – the population density of most of the Australian landmass is very low. Wik was designed to allow Native Title claims over pastoral leases, which in turn validates Crown claim to sovereignty over a greater area.