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AUSTRALIAN
MARXIST
REVIEW

Journal of the Communist Party of Australia

ISSUE 40AUGUST 1998

Land Rights or Native Title (a 5 point plan)

All the intentions of the Australian public, to ensure that Justice was served for Aboriginal people, failed during this period here in this region [Kakadu]. And often we look at it as Land Rights being born here and Land Rights dying here.

Jacqui Katona — Executive Officer Gundjehmi Aboriginal Corporation (1997)

The debate on the rights of Aboriginal and Islander peoples in Australia centres, and until the problem is solved will continue to centre, on the question of ownership of their former territories and the type of format that should be used to establish and legalise such ownership.

No doubt, the ruling-classes of yesterday and today and their agents in the various bureaucracies of the state, thought that through dispossession, forced religious conversion, assimilation, child theft, massacres and other forms of racism and ethnocide, the indigenous Land Rights claim would disappear.

However, more than 200 years have gone by and this dilemma still hangs around like the proverbial “bad smell” ... and ignoring the problem has also proved to be no solution.

The struggle for Aboriginal and Islander Land Rights is the longest-running political conflict in Australia’s history. It is also the only political struggle in our history that in some of its phases included armed conflict.

The struggle for Land Rights is:

  1. the struggle to return to the Aboriginal and Islander peoples of Australia the right to inalienable communal ownership of the land, the sea and waterways they once owned. So that they can use the resources of land, sea, rivers and lakes as a means of providing the necessary material base for a dignified autonomous existence, including the right to self-government within a wider multicultural Australian nation.
  2. the struggle for rights of the indigenous peoples of Australia to claim and obtain ongoing compensation for sections of land and sea that they are no longer able to use in any form of indigenous communal ownership (e.g. urban areas, mined and deforested lands, contaminated land and waterways, etc.), and also the right to play a key role in the designing and implementing future immigration policies.
  3. based on the principle of coexistence on equal terms with all subsequently introduced forms of landhold titles, leases and any other form of licenses covering the use of/and or water.

These are demands based on the historical fact that whilst many of the current uses of the Australian landmass are irreversible, nonetheless the land was stolen by force from its previous owners — the Indigenous Nations of Australia.

There has never been an agreed loan, purchase or any other legal form of land transfer with bilateral or multilateral consent. Therefore the Crown is clearly guilty of mass theft and accordingly it must be made accountable for its actions.

For Land Rights to exist in an inalienable form (i.e. for Land Rights not to be alienated, surrendered or in any other way extinguished), those rights must not exist just merely as an Act of Parliament, but they must form an integral part of the Australian Constitution.

The Mabo High Court decision (June 1992) put to rest once and for all the notion of terra nullius — an empty land belonging to nobody — the British “legal” foundation for the theft of more than an entire continent. At the same time, the High Court recognised indigenous use and ownership of land prior to European colonisation.

But simultaneously, it delivered a blow against the struggle for Land Rights by introducing the legal concept of Native Title to the Australian situation.

According to the High Court, Native Title can at best “coexist” with some existing leases, but only in a subordinate capacity — at worst it is totally extinguished by some forms of title such as freehold.

In other words, after the Crown sold land stolen from the indigenous people against their will, the original owners have no legal way of claiming it back or demanding any compensation.

An exception applied to any land titles granted by the Crown after the Racial Discrimination Act of 1975 was passed, but only if the granting of these titles did not take the interests of the native title owners into consideration. However, subsequent Native Title legislation has also neutralised this minor exception.

How can the highest Court in the land recognise that there was indigenous ownership of land prior to white colonisation, also be aware that the colonial power obtained the land without any consent from the indigenous owners, and then declare that various forms of subsequently introduced colonial landhold titles are legally extinguishing indigenous ownership of the land? Is the High Court of Australia legitimising mass theft by setting this precedent?

Later, the High Court’s Wik decision (December 1996) reaffirmed that pastoral leases did not necessarily totally extinguish all Native Title rights. But, where there is conflict in the exercise of those rights, Native Title rights were subordinate to those of the pastoral leaseholder.

It is not surprising that the High Court of the Crown is so overtly instrumental in defending the actions, past and present, of other branches of the Crown.

What is indeed surprising is that a number of organisations, both black and white, that claim to have the best interests of the Aboriginal and Islander peoples of Australia close to their heart, go out of their way to declare their unconditional support for what both the Mabo and Wik High Court decisions essentially stand for: prolongation of the status quo.

There are also some arguments claiming that the removal of the indigenous peoples from their land can be justified on the basis of the principle of squatters’ rights.

Yet, even according to white law, such principles do not apply in this case, for at least the following three reasons:

  1. Squatters’ rights can only come into effect if the owner of the land does not object to the squatter’s presence — the indigenous peoples of Australia objected and put up a fierce resistance to try to stop the theft of their land.
  2. The squatters can only claim the land after an extended period of occupation — in Australia, the British Crown claimed sovereignty and ownership of the land immediately upon the arrival of its colonisers.
  3. Squatters can only claim land if appropriate laws exist covering the land in question. Squatters do not have the right to unilaterally change the law of the land in order to make it possible to obtain their goals — the Indigenous Nations of Australia had their own structure of land sharing and there is no evidence that the concept of squatters’ rights, or anything similar, was in any way part of the law of the land.

Indeed, one of the reasons pastoral leaseholds were introduced to Australia and New Zealand was to control squatters’ activities.

Soon after the Wik High Court ruling was handed down, a number of wealthy Australian and foreign pastoral leaseholders and their organisations, have linked hands with their agents at various levels of Parliament and started a fear campaign to intimidate and scare the rural population and other poorly informed Australians. In order to obtain their long-held goal of either converting their leases to freehold or removing some of the current lease conditions to achieve a multi-purpose use of the land, they have falsely claimed that since the Wik High Court decision was proclaimed they no longer have a certain future on their land. In fact nothing has changed.

Notwithstanding the dispossessing character of colonialist occupation, there was always an indisputable intention to provide the native populations with the means to carry on with their traditional activities on the land:

Nothing contained in any pastoral lease shall prevent the Aboriginal natives of this colony from entering upon the lands comprised therein, and seeking their subsistence therefrom in their accustomed manner.

(Order in Council directed to the Colony of Western Australia, 1850.)

This British colonial legal directive gives the traditional owners rights that they now no longer have.

Now, more then a century later, we are witnessing the ruling class leading a new breed of fundamentalist “born-again-squatters”.

It is important to note however, that it is the past and present ruling classes and their agents installed in the various levels of the state mechanisms (i.e. the Crown) that are guilty of the theft of Aboriginal Land and the associated acts of ethnocide. While blame for this tragedy does not lie with the majority of Australians, there are some guilty individuals and organisations who have voluntarily supported and/or continue to support acts of racism and dispossession.

Since history can never be reversed, for us to seriously redress the injustices and atrocities committed against the Indigenous Nations of Australia, the current generations of First Australians are (subject to appropriate and meaningful consultation) entitled to:

  1. Have their history acknowledged and their rights enshrined in the Australian Constitution.

  2. Establish their various levels of autonomous self-governing councils, free of any interference from the existing political structure.

  3. Establish their self-governed Regional Communal Autonomous Areas, when possible in accordance with their geographical traditional ownership of land or by joint agreement between multiple Indigenous Nations.

    These Autonomous Areas and their resources would be owned by a form of communal ownership consistent with indigenous tradition. Constitutionally they would enjoy similar status to the States, thus having an equivalent type of representation in the Australian Federal Parliament, the Council of Australian Governments (CoAG) and other intra-Federal bodies.

    All existing non-Aboriginal populations and businesses would have the right to remain in these areas and would pay all their current state or territory taxes, fees, charges, royalties, etc. to their indigenous governing authority. This authority would in turn provide the public services and amenities that state and local governments were previously responsible for.

  4. Establish self-governing councils in urban and local areas which would act on behalf of the respective indigenous populations and would claim and obtain ongoing financial compensation for lands now predominantly occupied by freehold leases (cities, country towns, etc.) and/or areas undergoing resources exploitation (mines, timber plantations, fisheries, etc.).

    A percentage of local government rates, charges, fines, exploration licenses, royalties, etc. would be paid to these urban and local indigenous self-governing councils as remuneration for the land and resources stolen from them. These councils would have a similar status to local government bodies within the framework of the state governments and other intra-state bodies.

    These funds would be rightfully earned by the indigenous communities, thus providing them with the necessary finances to maintain the living standards of their people in urban and local areas. This would at the same time free the indigenous peoples from their dependence on what is now perceived by many to be government hand-outs.

  5. All the necessary assistance and co-operation from the existing bodies of the Crown during an interim period. During this time the necessary infrastructure would be constructed and implemented to establish an indigenous, autonomous, self-governing political system within the framework of the Federal Commonwealth of Australia.

We need to be able to make decisions about social, cultural, economic, and environmental matters in our region,but not just the right to attend advisory meetings which may, or may not, pass our ideas up the line. We need a clear,legally enforceable regime of land and sea rights. We need a real control of staff and office budgets, not the appearance of control as through ATSIC. We need the means and facilities to secure and develop our culture.

Getano LuiChair, Torres Strait Regional Authority

We, all Australians, must now work towards returning to the Indigenous Nations of our country what was forcefully taken away from them — their autonomy and their land.

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