The claim

Calls from across the political spectrum have been getting louder to reach a bipartisan consensus on the issue of Indigenous constitutional recognition.

One Nation Leader Pauline Hanson remains sceptical. She recently argued that the rights granted to Indigenous people in the High Court's 1992 native title decision, colloquially known as the Mabo decision, would be further entrenched by constitutional recognition, and that if Australia became a republic in the future, this could lead to unintended consequences.

"Same as with Mabo, and the native title. We thought we were signing over just to Mabo because his connection with the land. It's had so much impact on us with native title, that a lot of people have been dispossessed of their lands in Australia because of it," she said on 2GB radio.

Has the Mabo decision led to a lot of people being dispossessed of their land? RMIT ABC Fact Check investigates.

The verdict

Senator Hanson's claim is baseless.

Experts consulted by Fact Check could not identify any native title decisions in Australia which have dispossessed a freehold land title holder of their land.

The High Court's Mabo decision in 1992 did not give Indigenous people the right to reclaim traditional lands from just anyone.

Private property held under freehold title, such as your house and backyard, has already had any native title extinguished under Australian law.

Native title claims can only be made on Crown land, though this land may be covered by a pastoral lease or other interests that are deemed by law to prevail over native title.

But even in the case of pastoral leases, the High Court's 1996 Wik decision found that the rights of pastoralists and native title holders can co-exist, and that when they are in conflict, the rights of the leaseholder prevail over those of the native title holder.

Experts were adamant that dispossession of freehold title through a native title claim is not consistent with Australian law.

Native title claim groups can only make a claim over Crown land. ( ABC Local: Ross Kay )

Assessing the claim

Fact Check contacted Senator Hanson's office to ask for the source of her claim, but did not receive a response.

In making her claim, Senator Hanson said people had been "dispossessed of their lands".

Kate Galloway, an associate professor in the Faculty of Law at Bond University, told Fact Check that dispossession means to "cancel or nullify someone's legitimate right to land".

"Dispossession doesn't relate to public rights to land, or rights to access public land," she said.

"In Australia, we don't have private title, generally, to beachfront or other public places ... if the general public is stopped from accessing parts of land, that's not regarded as dispossession. That's just a loss of public access."

Associate Professor Galloway said that possession can describe a right of a tenant of a property, for example, but that doesn't set possession up as the opposite of dispossession in relation to land title.

"When we talk about possession of land, possession can mean, literally, if you're in possession of a house, then you might be the tenant or you might be a guest. It doesn't mean that you own it, or that you have the title to it, but you're in possession of it.

"But if you throw out your guest, you don't say that they've been dispossessed of that land."

As Senator Hanson spoke of people being dispossessed of "their lands", Fact Check takes this to mean someone who holds the title of the land under the law.

What was the Mabo decision?

The ruling referred to as the Mabo decision, handed down by the High Court on June 3, 1992, was the culmination of a decade of litigation.

The decision gets its name from one of its plaintiffs, Eddie Koiki Mabo, who along with four other Torres Strait Islanders, began a legal claim for ownership of their lands in the Murray Islands, situated in the Torres Strait between Papua New Guinea and Australia, on May 20, 1982.

A map of the Torres Strait Islands, with the island of Mer highlighted to the east ( Supplied: National Native Title Tribunal )

In a 6-1 decision, the court established that:

"... the Meriam people [of the Torres Strait Islands] are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands", with the exception of land which was "validly ... appropriated for use for administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and privileges of the Meriam people under native title ... putting to one side the Islands of Dauer and Waier and the parcel of land leased to the Trustees of the Australian Board of Missions."

The judgment was specific to the Meriam people, and the land over which they had laid claim, and did not automatically transfer control of all unallocated crown land in Australia to its traditional Indigenous owners.

But it did have a profound effect on the common law in Australia, setting a precedent for decisions on other parcels of land.

Terra nullius

According to the Australian Institute of Aboriginal and Torres Strait Islander Studies, the Mabo decision "altered the foundation of land law in Australia by overturning the doctrine of terra nullius (land belonging to no-one) on which British claims to possession of Australia were based. This recognition inserted the legal doctrine of native title into Australian law".

Eddie Mabo died before the judgment bearing his name was handed down by the High Court. ( Supplied: Jim McEwan )

In simple terms, the court found that the idea that Australia was a land which belonged to no-one — the very basis upon which Australia was colonised — was a "fiction" in terms of supporting British ownership of land titles.

From the judgment:

"It was only by fastening on the notion that a settled colony was terra nullius that it was possible to predicate of the Crown the acquisition of ownership of land in a colony already occupied by indigenous inhabitants. It was only on the hypothesis that there was nobody in occupation that it could be said that the Crown was the owner because there was no other. If that hypothesis be rejected, the notion that sovereignty carried ownership in its wake must be rejected too."

In the months following the decision, there was much debate over what it meant for land ownership in Australia, and how to deal with its ramifications.

The Keating government was in power at the time and set about enshrining the principles of the decision in legislation.

After protracted negotiations with Indigenous representatives, pastoralists, miners and crossbench parties in the Senate, the Native Title Act 1993 was legislated to provide a "straightforward mechanism to determine whether or not native title exists and what the rights and interests are that comprise that native title," according to the bill's explanatory memorandum.

Making a native title claim

The Native Title Act established an independent government agency called the National Native Title Tribunal, to "make decisions, conduct inquiries, reviews and mediations, and assist various parties with native title applications, and Indigenous land use agreements".

According to the section 61 of the act, a claim can be made by:

1. A person or persons authorised by the native title claim group 2. A person who holds a non-native title interest in the land 3. The Commonwealth Minister 4. The state or territory minister, if the land falls within jurisdictional limits of the state or territory concerned

An application is filed in the Federal Court, which has jurisdiction to hear and determine claims under the act.

In one of a series of documents written by the tribunal to celebrate 25 years of native title in Australia, entitled Key Native Title Cases, it states the act "requires that native title rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed by any native title holder. Further, that the native title holders have a connection with the claimed land and water under the system of law and custom".

Map shows Australia by claimant applications filed in the Federal Court and determinations of native title, as per the National Native Title Register. ( Supplied: National Native Title Tribunal )

Associate Professor Galloway told Fact Check that bringing a native title claim is "extremely difficult for claimants" for a number of reasons.

"As applicants they bear the burden of proving their ongoing connection with their lands under their original system of laws. States are automatically the defendant in this litigation — so the law sets up an adversarial process," she said.

Associate Professor Galloway noted that claims often take a long time to settle, referring to an Australian Law Reform Commission report which referenced a National Native Title tribunal report.

It said that claims made before 2011 took six years and three months on average to finalise by consent determination, and seven years on average if they were litigated.

Even after many years of litigation, there is no guarantee that native title rights will be granted by the court.

The Yorta Yorta people in Victoria discovered this when the Federal Court, and then the High Court on appeal, ruled against them.

From the tribunal document:

"Olney J found that native title no longer existed due to a lack of continued connection by the claimants and all prior generations of their ancestors to the land subject to claim. He determined that they ceased to occupy the land 'in the sense that the original inhabitants had occupied it' and the 'tide of history has indeed washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs'."

Tenure matters

According to the Australian Trade and Investment Commission, a federal government agency, most of the developed, privately-held land in Australia, like the land your house sits on, for example, is held under freehold tenure.

"Freehold land (or fee simple) provides people with the most complete form of ownership of that land, in perpetuity," its website says.

Sean Brennan, director of the Indigenous Legal Issues Project at the Gilbert + Tobin Centre of Public Law at the University of New South Wales, told Fact Check that the Mabo decision explicitly excludes freehold title from native title claims.

"In 1992, opponents of the High Court's Mabo decision said that recognising native title threatened people's backyards. That was false and in many cases mischievous. The court in Mabo made clear that a freehold grant extinguished native title."

Indeed, at the time of the decision and the subsequent debate to legislate the Native Title Act, fears were raised that the court decision and the legislation would result in claims being made on people's private property.

Eddie Mabo (left) the Island of Mer in the Torres Strait Islands. ( National Archives of Australia )

Notably, then premier of Victoria Jeff Kennett made this claim. He subsequently retracted it in an interview with the Age almost a decade later.

Associate Professor Galloway told Fact Check: "The Mabo decision specifically preserved all freehold title. The grant of a freehold interest brings the doctrine of tenure into play, and extinguishes native title. Therefore it is impossible for native title to survive a freehold grant."

Patricia Lane, a barrister and senior lecturer at the University of Sydney Law School, who is also a former registrar and former member of the National Native Title Tribunal, told Fact Check that "where there has been a previous exclusive possession act (PEPA) native title is extinguished".

"Where a 'true' (common law) lease is granted, that will confer a right to exclusive possession on the tenant, which is also inconsistent with the existence of native title rights, and so a lease which confers a right to exclusive possession is also an extinguishing act," she said.

Section 23B of the Native Title Act defines a previous exclusive possession act as "a grant vesting of any of the following":

a Scheduled interest (see section 249C);

a Scheduled interest (see section 249C); a freehold estate;

a freehold estate; a commercial lease that is neither an agricultural lease nor a pastoral lease;

a commercial lease that is neither an agricultural lease nor a pastoral lease; an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A); a residential lease;

a residential lease; a community purposes lease (see section 249A);

a community purposes lease (see section 249A); what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to "1 January 1994" were instead a reference to "24 December 1996";

what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to "1 January 1994" were instead a reference to "24 December 1996"; any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

Section 61A of the act says that an application for native title may not be made if:

(a) a previous exclusive possession act (see section 23B) was done in relation to an area; and (b) either: (i) the act was an act attributable to the Commonwealth; or (ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23E in relation to the act;

Associate Professor Galloway told Fact Check that the only possible exception in relation to freehold grants would be if a government had made a grant of freehold tenure after December 1, 1996 (post-Native Title Act) where "that grant failed to comply with the negotiation processes under the [Native Title Act]".

"But that isn't a case of dispossession — it's a case of the government's failure to follow its own processes. This is such a rare and unusual situation as to be almost unheard of."

So if the Mabo decision, and the ensuing Native Title Act do not allow a claim to be made over your land, where can a claim be made?

The Wik decision

If it was the Mabo decision that inserted native title into the Australian common law, it was the Wik decision which that clarified it, especially in relation to pastoral leases.

According to ATIC, pastoral leases are titles "issued for the lease of an area of Crown land to use for the limited purpose of grazing of stock and associated activities. It is a limited property right and does not provide the leaseholder with all the rights that attach to freehold land".

Almost half of mainland Australia is covered by pastoral leases. ( Jo Prendergast )

The commission notes that approximately 44 per cent of Australia's mainland is covered by such leases, and that much of northern Australia is comprised by such leases.

During the debate surrounding the legislation of the Native Title Act, concerns were raised around whether claims could be made on pastoral leases.

In question time, then opposition leader John Hewson repeatedly asked government ministers whether the proposed act would extinguish native title:

"I direct my question again to the Minister for Aboriginal and Torres Strait Islander Affairs. The minister may recall that yesterday the Attorney-General basically admitted that the issue of a valid pastoral lease may not completely extinguish native title; that there may be coexistent native title; and that there may be native title claims over valid leases. Yet in the minister's document, from which I quoted, issued in June, entitled 'Rebutting Mabo Myths', he said that the grant of these titles extinguishes any native title. Who is right — the minister or the Attorney-General?"

On June 30, 1993, the Wik peoples of western Cape York lodged a native title claim in the Federal Court over parcels of land which were covered by pastoral and mining leases.

The claim was made before the legislation of the Native Title Act and eventually made it to the High Court on appeal in 1996.

In relation to the pastoral leases in respect of Holroyd River Holding and Mitchellton Pastoral Holding, the court found that the pastoral leases do not confer the rights of exclusive possession on the grantees of the leases.

In effect, the court said that pastoral leases do not extinguish native title, and that the two can co-exist.

However, where the rights of the pastoralist and the rights of the native title holder are in conflict, the court held that the rights of the pastoralist would prevail.

As summarised by AIATSIS, the court decided that:

"A pastoral lease does not necessarily confer rights of exclusive possession on the pastoralist The rights and obligations of the pastoralist depend on the terms of the lease and the law under which it was granted The mere grant of a pastoral lease does not necessarily extinguish any remaining native title rights If there is any inconsistency between the rights of the native title holders and the rights of the pastoralist, the rights of the native title holders must yield."

"So if there is a conflict of rights, the native title holders come off second best. If there is no conflict, the rights of each co-exist."

These kinds of rights over pastoral leases which are non-exclusive do not include the right to control access to an area, but "may include the right to live on the area, hunt, fish, gather food or teach law and custom on country".

Associate Professor Galloway said that the building of dams and cattle yards, for example, on pastoral leases would be areas where the rights of the pastoralist prevail over the native title holder, and that the title holder would not have the right to traditional ceremony, for example, where these developments had been constructed.

"On that area [of the pastoral lease] it's not going to co-exist", she said.

Case study: Shelburne Bay

Experts spoken to by Fact Check maintain that the law does not allow native title to dispossess a person of their freehold land.

Notwithstanding, there are certain situations involving native title which may be misconstrued by members of the general public.

Pastoral leases, for example, can allow pastoralists to reside on a parcel of land, often for decades at a time, and to build on it.

People who have resided on a parcel of land for a long time might come to view it as 'theirs', even if the legal facts are different.

But once a pastoral lease expires, there is no guarantee that a lease will be renewed.

In the late 1990s, the lease on one such parcel of land, around Shelburne Bay in Cape York, expired.

The Queensland government extended the lease, held by the Nixon family for over 30 years, for a short period of time to allow negotiations to continue over vacating the site and compensation for buildings.

The white silica sand dunes of Shelburne Bay. ( Supplied: Kerry Trapnell )

However, negotiations broke down, and the Nixons refused to leave the property after the state cancelled their occupation licence.

At the time, a native title claim had been made over the area by its traditional owners, the Wuthathi people.

The Wuthathi people later cancelled this claim and relodged it after the lease had expired.

This allowed them to make an application under section 47B of the Native Title Act, which says the court must disregard prior extinguishment over unallocated crown land, where "one or more members of the native title claim group occupy the area".

Parliamentary Hansard from the time reveals that there was a significant interest in conservation in the area, with undisturbed white parabolic sand dunes present in the bay.

In 2002, then state minister for natural resources and mines, Stephen Robertson, told Queensland parliament: "Shelburne has been a priority acquisition for conservation for over 25 years. It was well known on the cape that the government would not renew the lease upon expiry."

Lawyers for the Nixons argued in the Supreme Court that the government was "refusing to extend the term of the lease and in purportedly cancelling the occupation licence intended to confer occupation rights on the Wuthathi Aboriginal people under the guise of environmental or nature conservation".

The court dismissed the government's application for a summary judgement for "an order that the relevant defendants deliver up possession of such land and other incidental relief" and ordered that the facts be settled in a full trial.

The Wuthathi native title claim to the area around Shelburne Bay was not finalised until a few years ago. ( Supplied: Kerry Trapnell )

The native title claim made by the Wuthathi people was settled in 2015.

In the judgment, the Federal Court disregarded any prior extinguishment of native title pertaining to the former pastoral lease, though it is not clear from court records at this point whether any of the Nixon family still occupied the lease area.

Ultimately, whether or not someone sees the land as theirs is irrelevant in the eyes of the law.

Ms Lane told Fact Check the question of extinguishment is one of whether the interest in the land is valid: "If the interest comes to an end, the occupant has no longer any right to be there."

Associate Professor Galloway view was that that the policies of the National Party government in Queensland in the latter half of last century created an expectation that pastoral leases in the state were "as good as freehold".

But she said that with the changing of governments and the rise of the importance of conservation and land rights, "the pastoralists, who had expected that they had this ongoing interest in the land, they were confronted with a whole onslaught of different factors that meant this wasn't the case ... those interests were only ever a [pastoral lease of a certain duration] it was always open to the minister to approve or not an additional term on that lease".

"A leasehold interest has never been as good as a freehold interest."

What do the experts say?

Fact Check asked experts whether any case where a freehold titleholder was dispossessed of their land; they were emphatic that no such case exists.

Associate Professor Galloway said that such a decision would be widely studied and "would basically overturn Mabo".

"The very basis of the Mabo decision was that native title could continue to exist until the state evinced a clear and plain intention to extinguish it, and one of the most obvious means of extinguishment is the grant of a freehold estate in land."

"[Native title and freehold title] are fundamentally inconsistent. In fact, they are so inconsistent, that in a subsequent decision where there had been a grant of freehold, and then the state cancelled the freehold and the traditional owners made a claim ... the court said 'once it's gone, it's gone — you can't bring it back."

Ms Lane said that it would create a logical fallacy under the law: "It would suggest that it is possible to acquire title to land otherwise than through a Crown grant — which is not legally possible — as the Crown asserts rights over the whole of the land within a state, it is logically impossible for a validly granted right to arise without the ultimate source of the right being the Crown."

Associate Professor Galloway told Fact Check that "[dispossession as a result of native title] doesn't happen".

"Anyone with a registered interest created before 1 December 1996 (freehold, leasehold) has a 'superior' interest at law, that will have extinguished native title," she said.

Ms Lane said Senator Hanson's claim is "just plain wrong".

She said the Wik decision meant "there was no legal possibility that anybody's granted rights, if those granted rights were valid ... they couldn't be extinguished or people couldn't be dispossessed by the recognition of native title. They could have to co-exist, but they wouldn't be dispossessed".

Associate Professor Brennan told Fact Check that Senator Hanson's claim is "a mistaken view of how native title operates in Australia".

"Aboriginal and Torres Strait Islander groups face two major hurdles in proving native title: the connection requirement and the technical rules of extinguishment. Groups have to show a continuous connection with the area under their traditional law. That is a high legal bar," he said.

"Even then, the courts may still refuse them recognition as native title holders, if the Government has already given rights to others, or used the land itself, in a way that 'extinguishes' native title. So under Australian law it is the rights of others that can dispossess native title holders of their lands, not the other way around.

"These basic propositions have been confirmed time and time again around Australia over the last 25 years since the Native Title Act came into effect."

Principal researcher: Matt Martino, online editor

Sources