[Aboriginal people please note that some of the elders quoted in this text are deceased]
By Callum Clayton-Dixon [from Brisbane Blacks]
Before delving into how Native Title legislation weighs up against true Land Rights, we must first take a look at how the debate began. The struggle for Land Rights has been raging in this country for almost two and a half centuries now, a fight against theft, genocide and lies.
In the course of his first voyage of ‘discovery’ during the late 1700s, James Cook claimed the entire east coast for Britain under the premise of terra nullius, meaning land belonging to no one. Under British law and accepted international conventions held by Western powers, there were three ways for a colonizing nation to legally gain sovereignty over new territories –
1) CONQUEST; the colonizing nation was obliged to negotiate full and just reparations and compensations to the First Nations peoples for all lands alienated
2) TREATY; the colonizing nation was obliged to negotiate terms of coexistence with First Nations peoples (e.g. New Zealand, Canada & USA)
3) TERRA NULLIUS; the colonizing nation declares a land terra nullius, meaning the land was devoid of human inhabitation, thereby removing the need to deal with or negotiate with the First Nations peoples
Several hundred autonomous tribes, each with unique languages, cultures and laws, ran this continent for thousands of years. British occupation of this country was illegitimate under international law and founded upon a lie, and the same applies to Federation in 1901 and the Australian Constitution. The 1992 Mabo case resulted in Australia’s High Court overturning the legal doctrine of terra nullius, but only in the context of Australian common law. The notion that this country was a land belonging to no one prior to colonization remains in place as the basis in international law for the Commonwealth’s alleged acquisition of sovereignty over First Nations peoples and our lands. This country’s legal systems and governments are still based on fiction and the idea that we were classed as flora and fauna pre-invasion.
According to Pakana Lawyer Michael Mansell, “the Court did not overturn anything of substance, but merely propounded white domination and superiority over Aborigines by recognising such a meagre Aboriginal form of rights over land. The judges did little more than ease their own conscience of the guilt they so correctly feel for maintaining white supremacy”.
In response to the High Court decision, Keating’s Labor government passed the 1993 Native Title Act. Historian and veteran activist Dr Gary Foley says the passing of this legislation was “the greatest act of dispossession of Aboriginal people in the history of Australia since Captain Cook stuck the Union Jack in the ground”.
Another High Court case in 1996, the Wik decision, deemed that the rights of pastoralists superseded Native Title rights. John Howard’s 10 Point Plan to decimate what little rights Native Title legislation granted to First Nations people was implemented in the Liberal government’s amendment to the Act in 1998. This opened the floodgates for further extinguishment of Native Title rights. In 2002, the High Court ruled that the Native Title rights of the Yorta Yorta people in Victoria were “washed away” by the “tide of history”. Essentially, the colonial judicial system decided that the Yorta Yorta people’s rights to their lands, established over millennia, no longer existed.
In the case that Native Title rights haven’t already been extinguished by government or the courts, claimants have two choices when it comes to this legislation (not mutually exclusive):
a) sign ILUAs (Indigenous Land Use Agreements) which are contracts between claimant groups and interested parties [government/industry/pastoralists/mining] regarding the use and management of lands/waters concerned
b) fight through the Federal Court for a Native Title determination which often takes more than 10 years and is a very costly and time consuming process
It has been common practice for mining companies and industry to violate ILUAs. Co-founder of the 1972 Aboriginal Embassy Michael Anderson (Euahlayi) labelled ILUAs “nothing but another piece of paper that creates a major theft”.
“ILUAs basically get you to acknowledge that the government is in charge, that they own the land and that you’re recognizing them as the sovereigns who have ultimate title over our country.”
The following are some of the major limitations of Native Title legislation:
- . Native Title does not provide for veto rights when it comes to claimant groups wanting to block mining/ development. ‘Coexistence’ with mining/farming/industry is the full of extent of Native Title rights.
- . The rights of pastoralists supersede those of Native Title holders when it comes to conflicts of interest.
- . First Nations people can only claim ‘Crown Lands’ and freehold extinguishes Native Title.
- . It is the responsibility of First Nations people to prove their ongoing traditional connections with the lands in questions – burden of proof.
- . Fighting through the Federal Court for a Native Title determination can often take more than 10 years and is a very costly and time consuming process.
- . Native Title is automatically extinguished in and around urban areas. Commonwealth & State governments also have power to extinguish Native Title for matters of ‘national interest’ (compulsory acquisition).
What’s more, the Federal Government’s Department of Indigenous Affairs dumps millions of dollars into the Native Title system every year, most of which gets spent on lawyers and bureaucratic process.
The Black Power movement that emerged out of Sydney, Brisbane and Melbourne during the late 60s followed by the landmark Aboriginal Embassy in 1972 pressured both major Australian political parties to make policy statements on the Land Rights issue. Liberal Prime Minister Billy McMahon effectively said that his government would never recognize Aboriginal Land Rights. On the other hand, Gough Whitlam’s Labor Party entered the ’72 election with the promise of national uniform Land Rights legislation. Unfortunately, promises can disappear just like writing in the sand. Between 1983 and 1996, the Hawke-Keating Labor government went a step further and “killed off the move for national Land Rights”. First Nations peoples have been left with the fraud that is Native Title along with the shambles of inconsistent and rather feeble ‘Land Rights’ regimes in each State and Territory (except Western Australia). But the fight for true Land Rights and self-determination persists.
So what does true LAND RIGHTS mean for First Nations peoples?
Dr GARY FOLEY (Gumbaynggirr historian): In the 60s and 70s, we were talking about real LAND OWNERSHIP; land that we could have control over, so we could say “no, you can’t come in here” or “we want to do this with our land”. That’s what self-determination is, the power to control your own affairs. Ownership of land is fundamental to this in terms of creating the basis for people to survive the attack of colonialism. Land Rights is important because it would provide the means by which the Aboriginal community could go through the process of reconstruction and recuperation. Until Koori communities have got economic independence, we will have no freedom.
MICHAEL MANSELL (Pakanalawyer): The rights that we held over our lands/territories before White people came here are the rights that should go back to Aboriginal people.
ROSS WATSON (Dawson River Murri): Land Rights means a spiritual and economic base (not in a profit and loss way) and the opportunity to once again become a self-determining people. We are not asking for Land Rights to be given or granted – we are demanding recognition of our rights to our own land. Land Rights include religious, fishing, hunting and camping rights if currently forbidden on all relevant ‘crown’ land. Land Rights includes our right to refuse mining on any part of our land [Black Nation, 1982].
Native Title legislation is not evenhalfway to achieving true LAND RIGHTS for First Nations peoples and isdeeply flawed.
Yorta Yorta woman MONICA MORGAN (Amnesty International)
– Native Title falls into the trap of
colonization – us having to fit within the confines of a doctrine that has been
transplanted from England. It’s not Land Rights and it’s not dealing with sovereignty or Treaty.
One of the fundamental flaws in colonial governments attempting tomake laws and decisions on behalf of First Nations peoples is that the Western interpretation of what is best for Blackpeople is based on Western ideals/ values and so called modern progress.Politicians along with handpicked ‘Aboriginal leaders’ continue to discharge rhetoric about how importantmining, industry and Native Title is for economic development in Black communities. Economic ‘development’implies exploitation. On the other hand, economic independence involves self-determination on OUR TERMS. Native Title ignores this outright.
Ngemba man JACK BEETSON (Wilcannia Land Council) – You can get all the elders you like to talk about thehistorical association to country and the culture that it revolves around, but until you get an archaeologist or anthropologistto support what they’re saying, the courts don’t even consider it. Our story doesn’t exist unless someone comes with a Western concept of what you’re talking about and verifies what you’re saying is the truth. That’s fourth-worldness.
Gamilaraay/Yiman man MARSHALL BELL (First Nations artist) – Native Title feeds the myth of exclusive rights and isolation, the myth that we didn’t move out of our own tribal areas.
Tribal boundaries/borders were never 100% certain, often the subject of dispute between clan groups in terms of who had custodial rights over a particular area (e.g. hunting grounds). The ever changing landscape presents another element of flux, as boundaries were primarily based around terrain features (e.g. rivers, mountains). Therefore, climate change and sea levels continue to play a role in this. The Native Title Act is far too restrictive and static to accommodate these crucial factors.
Wiradjuri woman JENNY MUNRO (veteran activist, poet and Koori Radio producer) – Their intention has been genocide. They wouldn’t have written it into legislation if it wasn’t their intention to extinguish our title, and that has become the business of Native Title. It’s all about extinguishment, not recognition of our Land Rights.
Synonyms for extinguish include DESTROY, TERMINATE, SMOTHER, SNUFF, END & STIFLE.
Gunnai man ROBBIE THORPE (veteran activist and 3CR Melbourne producer) – Native Title is a way for government to legitimize their occupation. The only thing that has come out of Native Title is a mining boom for non-Aboriginal people. There’s nothing common about the wealth here. It’s the STOLENWEALTH of Australia. They’ve divided our families, our communities and our nations. We’re not going to get justice when it’s the thief who is the judge.
When it comes to Native Title or any other government imposed piece of legislation, we as First Nations people must never forget that we are entitled to true Land Rights and full sovereignty OUR BIRTHRIGHTS. But we mustn’t hesitate to use whatever weapons we can against the colonizers in this war of attrition. The real danger is becoming complacent, comfortable and too familiar with what the invader society is offering us at any given time.