copyright Bruce Reyburn June 1992
Judgment Day, in Australia, was the 3 June, 1992. While the minds
of most Australian's were focused on the Rugby League State of
Origin final, another and more weighty matter was being decided.
On that day the High Court of Australia handed down its decision
in the 'long running' Mabo land rights case.
On the face of it, the vested interests which constitute the State
of Queensland had also lost that power play. Six out of seven High
Court judges found that, after two centuries of pretence, and ten
years of Torres Strait and taxpayers legal expenses, the common
law imported into this country from Great Britain could recognise
a form of native title.
This native title did not result from some act of the Crown, but
existed as a result of indigenous people being in possession of
the land before the Crown arrived. Common sense in other words.
They were living here first, and they had some system of ownership
of their lands.
The High Court, in taking this step, rejected the doctrine of
terra nullius (empty land). The Great Lie had been previously
relied upon to justify the British takeover of the living
countries of Australia's First People - without negotiation,
consent or compensation.
In these enlightened times, with European interests seemingly in
control, the High Court has decided to drop the pretence.
Aboriginal and Torres Strait Islander people are real after all.
There was much rejoicing at the news in parts of the Aboriginal
community and land rights industry. Paul Keating made a speech.
It was a bit like a public relations launch.
For politicians and members of the legal fraternity, concerned for
their respectablity, Anglo-Australia had finally moved into line
with the established international position. This would silence
the critics of our human rights record towards Aboriginal people,
surely, despite being two hundred years too late.
But, the Judgment had a sting in its tail. Native title only
exists today were it has not been extinguished by the Crown in the
past. In other words, where the Crown had given others leases or
freehold titles, native title had been killed off once and for
all. Sounds familiar.
The judges position is that, while the British proclamation of
sovereignty didn't automatic give them ownership of the land,
European ownership was actually achieved bit by bit as settlement
moved out across the country.
Most importantly, by a margin of four to three, the judges decided
that past wrongful extinguishment of native title by the Crown
does not give rise to a right for compensation. The ordinary
notion of justice and just acquisition does not apply, in the
minds of some High court judges, to native title.
Native title can also be extinguished by the State today, provided
that the exercise of the State power is not inconsistent with
other Commonwealth legislation such as the Racial Discrimination
Act. Whatever that means.
Native title, then, is not quite as real as the forms of title
imported into the country from England.
The message is clear. The rights of Aboriginal and Torres Strait
Islanders are not quite as real as those English speaking
Australians. Once again, in Australia, the protection of privilege
has produced a curious form of reason. Common decency is twisted
to comply with the property based logic of European rationality.
At the core of the Mabo decision First peole can clearly read what
is really in the heart of mainstream Australia. It says to First
People, loud and clear, "No deal." Common law might recognise a
form of native title, but not if it costs anything.
And the voice it speaks is the cultured voice of the language of
law. A voice which argues for rule by law. The voice of
respectability based on fortunes established by the expropriation
of the wealth of Aboriginal people. It is tragic for others that
it dominated the High Court decision.
The acceptable notion of justice, from a human viewpoint, does not
equate taking possession by force as a valid means transferring
ownership. It's commonly called armed robbery.
But the High Court judges were unable to take this step and agree
on the right of compensation. To do so would involve a substantial
transfer of wealth back to the First People. And the attitude
seems to be that, having amassed fortunes by playing with the
wrong rules for two hundred years, Anglo-Australia will only agree
to accept the valid rules if they can keep the ill- gotten
proceeds.
In simple terms, the interests behind Anglo-Australia cannot
afford to pay the massive debt it owes to Australia's First
People. They cannot afford to actually recognise Aboriginal people
as people with real rights. With the massive losses of Lloyds to
pay, amongst other mismanaged business gambles, they are bankrupt.
The present fire sale of the country's nonrenewable assets will
not bail them out, either.
The same mismanagement runs through several centuries of British
life. After the loss of the American colonies, and in the face of
growing social collapse in England, there was the bungled attempt
to 'settle' Australia. The Mabo decision rejects the doctrine of
terra nullius as a valid basis for sovereignty. There is no treaty
with the original owners. Where do we stand?
While the embarrassment over the genocide resulting from the
practices which went with terra nullius becomes increasingly
acute, there is an absence of will to adopt genuine corrective
measures. In place of the nonsense of terra nullius we are now
invited to accept the nonsense of a form of title to property
which disappears without trace on contact with European
settlement.
While Anglo-Australia is unable to repay its debt to Aboriginal
people, the costs will continue to grow. We have a special debt to
the survivors, since they are the ones who have borne the cost of
European mismanagement. These costs may not be shown on the
nations accounts, but they are real.
Amongst the costs, we can count the ecological disaster which
results from the exclusion of Aboriginal management practices from
the ecosystem. To convince European minds that its was alright to
hunt people off their living countries, the ways of First
Australia have been depicted as irrational.
The land management practices, which lie at the core of mens life,
were dismissed as primitive ceremonies without any real
relationship to the world. And yet they respectfully link human
life to the living country. No wonder the land is slipping through
the fingers of scientific experts.
Another cost of the Mabo decision is the failure to remove the
contradiction introduced into the concept of property by British
'settlement' of Australia. Exclusive ownership is underwritten by
considerations of fair acquisition. Property is respected because
the owners are considered to have acquired that property by a
process of exchange.
The Aussie Rules version of the European game state that property
can be taken without compensation - provided that the property
belongs to people already here and it is taken over by a powerful
new arrival. Hardly the sort of message to be sending to our Asian
trading partners - and the growing underclass?
And herein lies one of the possibly unconscious reasons behind the
curious Mabo decision. By pretending to recognise the property
rights of people in prior possession, the ground rules are set for
other new players.
With Anglo-Australia seeking to 'naturalise' a European presence
near Asia (a long way from home) it seeks to send a clear message
to the neighbours that established property rights are sacrosanct.
Not up for grabs by a repeat performance of British colonialism.
The form of native title dreamt up by the Australian collective
unconscious provides an illusionary perspective of historical
respectability to wealth obtained by brute force. Without the
compensation payment for wrongful extinguishment, it is not very
convincing illusion.
Most certainly, it is unlikely to convince the many First
Australian's who continue to insist that they have never ceded
sovereignty to the British Crown in the first place, let alone
lost a form of title invented yesterday. Their system of law,
which has been established in the land since time immemorial, has
a more radical form of title. It stems from a source greater than
the whim of seekers of property.
Additionally, if it can be argued that compensation can be denied
on the grounds that the lands of the First People were taken over
bit by bit, then it can also be argued that native title was not
extinguished due to the failure of the Crown to make a final
payment and cement the deal bit by bit. Who will decide? A
tribunal of respectable English speaking Australians?
To restore balance to life in Australia, and to find a stable
foundation for future generations, it is necessary for Anglo-
Australia to level with Aboriginal people. It is not a domestic
numbers game. The world is beginning to turn its attention to this
part of the world. And what do they see?
They may note that the Mabo decision was made by seven English
speaking judges operating from within an imported institution and
without any role being played by the lawmen of Australia's First
People. They may note that the High Court does not acknowledge
that it is built on the living country of local Aboriginal people.
They may note that the judges are not speaking the Aboriginal
language which is the voice of the country.
They may also notice at the tent embassy, across the lawn from the
High Court in Canberra, Koories are laying siege to the
Anglo-Australian claim of sovereignty. Having never signed a
treaty agreeing to British colonisation and, having never been
paid for the lands which were taken from them, they retain the
idea that the place is theirs. No doubt many fair minded people
will agree.
Preparations are well in hand to take the First Australian's case
to the International Court of Justice. The rejection by the High
Court of the doctrine of terra nullius, as a means of justifying
Anglo-Australian sovereignty, raises some interesting prospects.
Two hundred years of occupation versus 40,000 plus? How will the
world judge us?
It seems unlikely that there will be another Mabo type decision
within Australia in this decade. We may have just missed, by the
narrowest of margins, a last chance to get things right without
international pressure. By bestowing a shoddy form of native title
on the original owners, instead of paying the proper price,
Anglo-Australia failed to redeem its people on Judgment Day.