Land rights and native title

Land rights and native title When Gough Whitlam became Prime Minister in 1972, one of his main promises was the issue of land rights for Indigenous Australians. An inquiry, headed by Justice Woodward, was set up in 1973. The Woodward Inquiry The Federal Government was aware that state governments would reject any attempts at legislating for land rights across the nation, so Justice Woodward s inquiry was to focus on the Northern Territory (The NT was governed by the Federal Government until 1978). Read the recommendations of the Woodward Inquiry. It said that: 1 land trusts be established to hold communal [for community use] legal title to land on behalf and for the benefit of all those with traditional rights and interests in it 2 Aboriginal reserves and mission leases, and some other areas of land in the Northern Territory, be transferred to Aboriginal ownership 3 Aboriginal groups be able to claim other vacant Crown land with which they are traditionally associated (it should be noted that only groups, not individuals, can make claims for land) 4 royalties for mining on Aboriginal land be paid into an Aboriginal benefits trust account 5 the Land Councils act on behalf of the Aboriginal people in dealings with government, mining companies and other interests 6 permits be required to enter Aboriginal land (as they had been to enter reserves) 7 the policy of purchasing cattle stations for Aboriginal groups continue 8 land in towns be leased for community housing, hostels and camping sites, and that village areas be leased on pastoral stations for Aboriginal communities to live in 9 a three-person commission consider disputed claims and advise on the purchase of properties. Source: Woodward Land Rights Commission of Inquiry, 1974, cited in Kirk M, A change of ownership: Aboriginal land rights, Jacaranda Press, Sydney, 1986, p 42. Part 2 Aboriginal Peoples 65

The Whitlam Government prepared legislation based on the Woodward report but the Government was dismissed before the Bill could be passed. The Fraser Government s Bill weakened many of Justice Woodward s recommendations but was passed in 1976. Aboriginal Land Rights (NT) Act 1976 This Act, which only applied in the Northern Territory, was the first Australian law to allow land rights claims. A judge was appointed as an Aboriginal Lands Commissioner. It was the role of the Commissioner to hear any land claims. Although Justice Woodward had recommended land be available on a needs basis, the law that was ultimately passed required Aboriginal peoples to prove to the Commissioner that they had traditional ties to that land. Claims for land could only be made on land not already owned by an individual, company or council. This meant lands that had been designated, such as parks, could not be subject to a land rights claim. Other steps towards land rights Following the federal legislation for the Northern Territory, other laws were passed by the Commonwealth and state governments to allow Indigenous Australians to claim their traditional lands. The table below summarises some of the more important initiatives in the early 1980s. Year Step towards land rights 1981 Pitjantjatjara Land Act (SA) was the first state legislation to allow for land rights claims. It allowed for claims on unalienated Crown land in SA. This meant Aboriginal groups could make claims on Crown (government) land if the land was not already owned or occupied by another group or individual. 1983 NSW Land Rights Act in 1983 acknowledged the traditional owners of the land and set up a system for lodging land rights claims. 1983 The Federal Government returned the land at Maralinga in South Australia that had been used for atomic weapons testing. 1985 Uluru (Ayers Rock) was handed back to its traditional owners. Uluru was then leased (rented) back to the Federal Government and the Australian Nature Conservation Agency for a period of 99 years. Let s now have a closer look at the 1983 NSW legislation by reading the preamble to the NSW Land Rights Act. 66 Changing Rights and Freedoms

Whereas: Land in the State of New South Wales was traditionally owned and occupied by Aborigines; Land is of spiritual, social, cultural and economic importance to Aborigines; It is fitting to acknowledge the importance which land has for Aborigines and the need for Aborigines of land; It is accepted that as a result of past government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation. Source: Aboriginal Land Rights Act, 1983 The NSW Land Rights Act stated that any other groups or individuals could only be granted land claims over Crown land that was not being used or occupied. Land that was required for an essential purpose and residential land were excluded from land rights claims. National Parks and State Forests were also exempt. The NSW Land Rights Act set up a system of land councils local, regional and state through which claims for land could be made. In May 2004, the NSW government announced a review of the land rights system. Activity 25 Write true or false in response to these statements from the 1983 NSW land rights legislation. 1 The NSW legislation states that Aborigines are the traditional owners of the land. 2 The preamble to the NSW Land Rights Act states Aborigines should be given compensation for the loss of their land. 3 The NSW land rights legislation acknowledges the relationship that Indigenous Australians have with the land. 4 The NSW Land Rights Act was the first law to allow Aborigines to make land rights claims. Check your responses by going to the suggested answers section. Part 2 Aboriginal Peoples 67

Overturning terra nullius In primary school, you may have learnt that Captain Cook discovered the east coast of Australia. However, you also would have learnt that Aboriginal peoples had made Australia their home for at least 50 000 years and maybe as many as 170 000 years. When Captain Cook left England, his orders were to take possession of land if it was uninhabited. If the country was inhabited, Cook was to ask for the consent of the natives before England could take possession of the land. The cartoon gives you an idea of what actually happened when the English came to Australia in the late eighteenth century. Does it present an image of an inhabited or uninhabited country? According to English law a country was only considered inhabited if the people had built buildings and farmed the land. When Cook arrived in 1770, he saw Aboriginal peoples but no evidence of buildings or farming. Therefore he believed according to the law of terra nullius, that the Aboriginal peoples did not inhabit Australia. Source: Pyne M et al, Checkerboard: Themes and skills in Australian History, Longman Cheshire, Melbourne, 1993, p 204. During the 1960s and 1970s, there were several unsuccessful attempts by Aboriginal groups to have terra nullius overturned in the courts. But it wasn t until 1992 that the Australian High Court ruled terra nullius could not apply to the piece of land in dispute in the Eddie Mabo case. 68 Changing Rights and Freedoms

Mabo In 1982, a group of five Indigenous Australians, led by Eddie Mabo, went to the Queensland Supreme Court to obtain legal ownership of the lands on which they and their families had always lived. The lands in question were on Murray Island in the Torres Strait (the body of water that separates the top of Queensland and Papua New Guinea). While the Supreme Court case was underway, the Queensland Government passed legislation that ended any rights of Indigenous Australians to the islands of the Torres Strait after 1879. The group from Murray Island went to the High Court of Australia to challenge this new law. The High Court ruled the Queensland law was in fact breaking the Federal Racial Discrimination Act of 1975. The Queensland law was declared invalid. This ruling by the High Court is known as Mabo Number One. The High Court took several more years to rule on the ownership of the lands on Murray Island. On 3 June 1992, the High Court (with a majority of six judges to one) ruled the group did have traditional ownership rights to their land. The judges stated the concept of terra nullius could not apply to the lands on Murray Island. This was because a form of native title, in other words indigenous ownership of the land, already applied. This ruling became known as Mabo Number Two. Sadly, by the time the High Court judgement was pronounced, ten years after they first went to court, both Eddie Mabo and Celuia Mapo Salee, another involved in the case, had died. Public and political reaction to the Mabo decision varied. Paul Keating, the Australian Prime Minister from 1991 to 1996, gave the following perspective. Read the Prime Minister s thoughts on the Mabo decision in the source below. It is an extract from a speech he made in Redfern in Sydney, in 1992....we should ignore the isolated outbreaks of hysteria and hostility of the past few months. Mabo is an historical decision we can make it an historic turning point, the basis of a new relationship between Indigenous and non-aboriginal Australians. Source: Prime Minister Paul Keating, 10 December 1992 cited in the website of Apology Australia (accessed June 2005) Part 2 Aboriginal Peoples 69

Activity 26 Answer the following questions based on Prime Minister Keating s speech. 1 Did Mr Keating support the Mabo decision or not? 2 Write a quote from the source that demonstrates that not everyone agreed with the Prime Minister s thoughts. Check your responses by going to the suggested answers section. Indeed, there was real concern from some people in Australia, particularly the agricultural and mining sectors. You can read more articles on the Mabo decision, including Prime Minister Keating s full speech, as well as other issues related to Aboriginal peoples, at the Apology Australia website. The URL is: http://www.apology.west.net.au/index.html Native title Following the Mabo ruling, there was some panic from farmers and mining companies over Indigenous rights to land they were using. In 1993, the Federal Government responded by passing the Native Title Act. A claim for native title is different from a claim for land rights. When claiming land rights, Aboriginal peoples are claiming an interest in a particular piece of land and they are seeking legal ownership of that piece of land. There are different land rights laws in each of the states, but in general another group or individual cannot make land rights claims on land that is already owned. 70 Changing Rights and Freedoms

A claim for native title, on the other hand, is not seeking legal ownership of the land. Rather, it is seeking recognition of Indigenous Australians traditional rights to the land. The purpose of a native title claim is often to obtain shared rights to use the land. For example, an Indigenous group who has a traditional interest in a piece of land may want permission to practise traditional ceremonies, like food-gathering, on a piece of land which is being used by a mining company. Sometimes the group may wish to live on the land, but again they are not seeking legal ownership of it, only the right to use the land. Neither land rights claims nor native title claims can be made over a person s home or garden. Activity 27 Answer the following question. What is the difference between land rights and native title? Check your response by going to the suggested answers section. Part 2 Aboriginal Peoples 71

Native Title Act 1993 The 1993 legislation allowed for claims of native title to proceed. Its main initiatives were: the establishment of the National Native Title Tribunal. The Tribunal s main purpose is to assist people with native title issues. This may include negotiating native title claims or sometimes acting as an umpire when people involved cannot reach an agreement. the setting up of an Indigenous Land Fund in 1995 to provide money to the Indigenous Land Corporation to purchase land and oversee land management and running costs. The Federal Government provided money to the Land Fund annually until 2004. Now that the government funding has stopped, the Land Fund is self-sufficient. the setting up of a process to protect native title through the Native Title Act. Native titleholders must be consulted before a government agrees to give rights, such as mining rights, to the land to other parties. The native titleholders cannot stop others using the land, but are able to negotiate the use of the land. The Wik case After the passing of the Labor government s Native Title Act, 1993, there remained one significant grey area in land ownership. This was in the area of pastoral, or farming, leases. These were a special form of ownership that had been widely used in outback Australia from the middle of the nineteenth century. Pastoralists in the dry interior used these leases. They did not buy the huge tracts of land but leased them, usually very cheaply. When the British government granted most of these leases during the nineteenth century, they included a clause that required the leaseholder to allow Aboriginal people on their land to continue to use it for traditional purposes. In the outback, this provision was often ignored and more often than not, Aboriginal peoples were dispossessed quite savagely. Nevertheless, the provision remained a requirement of most leases. This historical fact became important in 1993 when the Wik people of Cape York lodged an application for native title over an unused piece of land that had formerly been a pastoral lease. 72 Changing Rights and Freedoms

Their application was initially rejected on the grounds that the pastoral lease, when it was granted, had extinguished (ended) all native title. However, the Wik people appealed this decision (because of the clause which allowed them to continue to use the land for traditional purposes) and eventually took their case to the High Court. The Wik decision At the time, almost all observers, including the government, believed the High Court would reject the appeal on the same grounds. However in 1997, the High Court ruled that native title could co-exist with a pastoral lease. Once again land ownership was in turmoil, with pastoralists throughout Australia fearing that their leases could be subject to native title claims by Aboriginal communities. Activity 28 Answer the following question. What is meant by the term co-exist? Check your response by going to the suggested answers section. Part 2 Aboriginal Peoples 73

Amendments to the Native Title Act To overcome any confusion, the Coalition government developed a Ten- Point Plan to amend the original Native Title Act. This Ten-Point Plan was very unpopular with Indigenous groups. Some compromises were made. However, when the government amended the 1993 Act, it became much more difficult for Indigenous Australians to pursue native title claims successfully. In fact, in 2002, a High Court ruling in Western Australia meant Aboriginal people had no native title over mineral rights in that state. Only a handful of native title claims have been accepted. Very little land has been returned to Indigenous Australians and the high hopes they had in 1993 have largely come to nothing. Go to the exercises section and complete Exercises 2.20 to 2.22 as directed by your teacher. 74 Changing Rights and Freedoms