Saturday, 28 April 2012

Native Title: Triumph and Tragedy

I've just finished the first of three weeks in the Kimberley region of Western Australia, working on a project that at least indirectly relates to Native Title issues.  Of course I've been thinking of the whole Native Title thing and it strikes me that it mixes triumph and tragedy on a grand scale.

Native Title law in Australia is based the famous Mabo Case, in the High Court of Australia in 1989, in which Eddie Mabo (pictured) and other applicants from Murray Island in the Torres Strait claimed they had a form of traditional title to their land which should be recognised under Australian law.

The court had to decide two things.  The first was essentially a question of fact - was there a recognisable system of land ownership in traditional Indigenous Australian societies?  Their answer to this was very clearly yes, and the convenient myth of terra nullius, the empty land the British explorers supposedly found, was finally laid to rest.  This 'native title' was not the same as European forms of land title and did not necessarily involve the same rights and responsibilities, but was based on clear traditions of land ownership stretching back to before European occupation of Australia.

The second question was a more tricky legal one - was the appropriation of this land by the British colonists legal, and hence was the current system of land title in Australia legally tenable given the prior existence of native title?  Not surprisingly, the answer to this was also yes, but the "yes" in this case was more qualified.  The Crown was entitled to appropriate any land it wanted, and to set the terms of compensation.  If in the case of Aboriginal people this compensation consisted of a few blankets and rations of flour, tea and sugar, that was legally fine.  However, the enactment of the Racial Discrimination Act in 1975 changed this game because after this it was necessary to treat Aboriginal people in the same way that people of other races would be treated, and therefore to compensate them properly.

In a subsequent case, the Wik judgement of 1996, the court found that the same reasoning could be applied in a mainland Australian context, that the granting of a pastoral lease did not necessarily extinguish native title and that it could co-exist with other land uses that did not require exclusive possession.

These judgements created a political storm which led to the creation of the National Native Title Act in 1993 and its amendment following the Wik judgement.  I seem to remember that Commonwealth and State governments, and especially ours here in Queensland, were mainly intent on protecting miners and pastoralists from the hordes of rapacious Aborigines who they expected to appear riding on the back of these judgements to sweep us all into the sea.   

In the end they stopped short of enacting the legislative equivalent of the brutal Native Police squads and ended up with something more like Patsy Durack, the redoubtable Irish patriarch of the Durack family described in his grand-daughter Mary's book Kings in Grass Castles.  Whenever Durack took up a new piece of land he would negotiate a deal with the local Aboriginal people, offering to kill a beast for them at regular intervals if they would refrain from spearing his livestock indiscriminately.  Durack was shocked at the Native Police and protected any Aboriginal person on his property during their murderous raids, but nonetheless he harboured no doubts about his entitlement to the lands he took over.

These judgements, and the legislation they prompted, were a huge leap forward for Aboriginal and Torres Strait Islander peoples.  They recognised for the first time that the original Australians had a legitimate stake in the land.  However, they are also clear evidence that law and justice are not the same thing.  At the same time that the High Court limited the further theft of Aboriginal land, it legitimated all the theft that had already taken place. 

The perverse outcome of this decision is that those who have lost the most are entitled to the least compensation.  Aboriginal nations who lived in the most fertile and densely populated areas of Australia can fight fiercely for native title, but when it is granted what will they get?  Nothing more than access to tiny scraps of 'unallocated crown land', rare and generally not much use for anything.  By contrast, people from remote, sparsely populated areas who have had the good fortune to be allowed to keep something of their land and culture are now eligible for compensation, especially if there are minerals under their land.

Of course those whose land is about to be appropriated should be compensated, and it is the triumph of the Native Title regime that it ensures this will happen, even if at the cost of a lot of angst and conflict within Aboriginal communities.  On the flip side, the tragedy is that the case for wider-scale compensation has been all but extinguished along with the finding that the granting of exclusive title under British or Australian law legally extinguishes any form of native title.  The acts of wholesale theft and cultural genocide which form the dark underbelly of Australian history can be safely acknowledged and deplored in the knowledge that it will not cost us a cent.  As long as the thief expresses remorse he will be allowed to keep his booty.

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