Land Justice for Indigenous Australians: Dealings in native title lands and statutory Aboriginal land rights regimes in northern Australia and why land tenure reform is critical for the social, economic and cultural reconstruction of Aboriginal people and communities Ed Wensing FPIA, PhD Scholar NCIS ANU Visiting Lecturer, School of Earth Sciences JCU
The Living on Our Lands study (WA) found: Low understanding of home ownership ; High misunderstanding of Crown s land tenures; Misapprehension about need for tenure reforms; High level of mistrust because Governments are notorious for continually changing policies; Native title holders do NOT want to surrender native title rights in exchange for tenures they don t understand & as inferior to customary rights.
Figure 1: Indigenous held land 1788-2013 (Altman 2014:3)
Figure 2: Indigenous land titling under three tenures (Altman 2014:6)
Figure 3: Distribution of Indigenous population from the 2011 Census and Indigenous land titles (2013) (Altman 2014:7)
24 separate pieces of legislation creating Aboriginal and Torres Strait Islander land regimes in Australia (excluding the Native Title Act and related statutes). Most of these are acts of grace or favour by State/Cth Govts!
Summary of land dealing provisions in statutory Aboriginal & Torres Strait Islander land regimes in northern Australia (NT, QLD, WA)
Observations Current debate on Indigenous land tenure reform skewed toward the neo-liberal agenda of private capital accumulation at the expense of communal forms of tenure. Native Title claimants face a miasma of complex legal and political issues, competing demands, a lack of resources, and a great deal of uncertainty (Bauman 2013) The recognition of traditional rights in country is often hard won, euphoric and highly symbolic. (Bauman 2013)
Observations Under s.56(5) of NTA native title cannot be assigned, restrained, garnisheed, seized or sold or made subject to any charge or interest. Native title is also inalienable, which gives the Crown a monopoly over extinguishment. Extinguishment of native title is a metaphor for placing limits on the recognition of native title rights & interests. Aboriginal and Torres Strait Islander people s connections to country don t just go away because they have been extinguished. (Dodson 1998)
Concluding comments What I hear from Aboriginal people is a passionate plea for justice. Real change has to happen on the Crown s side of the ledger. It s time to puncture a few legal orthodoxies so let s start turning the legal principles of property relations, inalienability and extinguishment on their proverbial heads.
Two different timelines, two different cultures, and two different laws. Mrs Margaret Iselin, Quandamooka Elder, at the signing of the Native Title Process Agreement between Redland Shire Council and the Quandamooka Land Council Aboriginal Corporation in August 1997. There are two laws. Our covenant and white man s covenant, and we want these two to be recognised We are saying we do not want one on top and one underneath. We are saying that we want them to be equal. David Mowaljarlai, Elder, Ngarinyin people, Western Australia, 1997