Native Title Bill.
Prepared by Bruce Reyburn
26 November 1993
1.O Due to the short notice regarding the referral of the
Native Title Bill (the Bill) to Committee, my submission is
not fully documented. I would be happy to provide additional
information if time allows.
1.2 Terminology. I use the expression 'First Peoples' rather
than the expression 'Aboriginal people' to refer to the
original Australian peoples.
1.3 I have studied anthropology since 1968, worked with First
Peoples in Central Australia during the 1980s and was awarded
a Lionel Murphy Scholarship in 1990 to work on ways of
improving the dialogue between the original and imported
systems of law in Australia.
2. MAIN CONCERN - THE QUESTION OF GENOCIDE.
2.0 My main area of concern arises in connection with the
extinguishment of native title rights in connection with
freehold and leasehold land irrespective of the degree of
inconsistency.
2.1 Clause 14(a); the definition of category A past acts
(Clause 214); the notes in the Explanatory Memorandum and the
remarks made by the Prime Minister in his Second Reading
speech operate to completely extinguish native title rights to
land held under freehold and most leasehold title from the
Crown. That is, not to the extent of any inconsistency, but
completely.
2.2 Not only is the Bill explicit in this extinguishment, but
my understanding of statutory interpretation is that there
could be no doubt in the mind of any judge that it is the
Commonwealth's intention that freehold and leasehold titles
completely extinguish native title.
2.3 From my Northern Territory experiences, as senior
anthropologist with the Central Land Council (1980-83) and
subsequently, this aspect of the Bill is in striking conflict
with the reality which exists on the ground. Many First
Peoples continue to assert their relationship to their living
countries to land which is also under pastoral lease.
2.4 The indigenous authorities validate their claims to the
land by reference to what may be glossed as Dreaming law. I
understand, as a result of my professional training, this law
to be the original system of Australian law.
2.5 Dreaming law operates to assign people a place in the
scheme of things, and it does so by reference to the
transcendental or cosmological concerns which shape the
experience of First Peoples. Through this means people and
country form a single unity. The lives of people are
interpreted as having come from the country. The expression
'birthright country' captures something of this relationship.
2.6 I believe that this system is not restricted to the
Northern Territory and may extend over most of Australia.
2.7 It is also my understanding, based on experience and
study, that the act of forcefully separating First Peoples
from their living countries is an act of violence of the
highest order. It results in lasting damage to the well-being
of both people and country.
2.8 The United Nations Convention for the Elimination and
Punishment of the Crime of Genocide states:
genocide means any of the following acts committed with
the intent to destroy, in whole or in part, a national,
ethnical, racial, or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of
the group;
(c) Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction
in whole or in part;
(d) Imposing measures intended to prevent births within
the group;
(e) Forcibly transferring children of the group to
another group.
2.9 I believe that (time and resources permitting) a case
could be argued to demonstrate that the present Bill will have
consequences for First Peoples which will cover the whole
range of this definition.
2.10 Genocide, as a crime, is a matter of international
concern. I submit that the protection of the citizens of the
Commonwealth of Australia generally, and the protection of the
well-being of Australia's First Peoples in keeping with the
Government's fiduciary duty, requires the Parliament to fully
examine the Native Title Bill in regard to the need to
eliminate genocide from Australian life.
3. JURISDICTION.
3.0 It has been asserted by the High Court that the Crown has
a right to extinguish native title. The Native Title Bill
seeks to exercise this power in regard validating freehold and
most leasehold titles.
3.1 I believe that this right, which stems from considerations
of a European system of law, is misconceived in an Australian
context.
3.2 There has been no treaty or other form of binding agrement
between the Crown and the First Peoples of Australia which
transfers this right to the Crown from those peoples.
3.3 The argument that the right of the Crown to extinguish
native title flows from considerations based on European
precedent, a fuller examination of the constraints upon the
Sovereign may reveal that the Crown is prevented from taking
actions which result in genocide.
3.4 A higher authority, be it the will of the people or from a
divine source, may operate to bind the hands of the Crown in
such a situation.
3.5 The validation of past acts which are said to have
extinguished native title may be in conflict with other
aspects of the legitimate exercise of power by the Crown. I
submit that this issue requires opinion from experts in
international law.
4. COMMONWEALTH TERRITORY.
4.0 The Native Title Bill seeks, at Clause 13, to validate
past acts of the Commonwealth. While land management may be a
State matter, the Commonwealth has a responsibility in respect
to its Territories. It has a particular responsibility towards
the protection of the well-being of Aboriginal people within
its Territories.
4.1 My concern is focused in particular, but not exclusively,
on land held under pastoral lease in the Barkly Region of the
Northern Territory. This is a Commonwealth Territory.
4.2 The struggle of Wombaya people, lead by Mr Jack Cotton,
at Brunette Downs to obtain recognition of their rights to the
land under that pastoral lease is well documented.
4.3 The South Camp at the township of Elliott, north of
Tennant Creek, has been a refugee camp for First Peoples
driven off their living countries in recent times by
cattlemen.
4.4 The Alyawarra lawmen at Epenarra demonstrated to me a
sacred site within a kilometre (or so) of the station
homestead and told me that while the pastoralist ran the
cattle on the country, they ran they business for the country.
4.5 At the adjoining Kurundi Station, major features of the
landscape are part of the Dreaming identity of the late
Japardi Whickham Jappanangka. This has been documented in land
claims heard before the Aboriginal Land Commissioner. Under
Dreaming law, Jappanangka would have heirs.
4.6 In short, there is the vast question of the survival (as a
result of a real struggle by First Peoples) of native title
rights to land in the Northern Territory which have survived
the issue of Crown pastoral leases.
4.7 While the covenants purportedly in favour of Aboriginal
rights in Northern Territory pastoral lease will not be
extinguished by the Bill, the opportunity for First Peoples to
prove their common law rights.
4.8 Given the religious dimensions of First Peoples
attachments to country, this may (on these grounds alone) be a
denial of rights under the Racial Discrimination Act. To this
end it is pertinent to note that the Northern Territory Self-
Government Act of 1978 was passed after the 1975 Racial
Discrimination Act.
4.9 I argue that the Commonwealth, in setting precedents which
can be followed by the States (Clause 18), must take special
care in respect to protecting the native title rights in its
Northern Territory - especially in resect to land under
pastoral lease.
5 MINERAL RIGHTS
5.O The Prime Minster has stated that the Government will not
agree to give mineral rights as part of the bundle of rights
which comprise native title.
5.1 Water is defined as a mineral in the Northern Territory
Aboriginal Land Rights Act. It is inconceivable that native
title rights, as calculated by indigenous considerations, did
not include rights to water.
5.2 The ethnographic accounts provided by Spencer and Gillen
for Warumungu (formerly Warramunga) speaking people document
part of the extensive Dreaming law which applies to Ngapa
(water).
5.3 As well as water, a wide range of minerals were
traditionally used for a variety of purposes from ceremonial
(paint) to practical (grind stones).
5.4 The existence of ochre mines, and the existence of
extensive trading routes associated with the production of
ochre, has also been documented by anthropologists. Trade in
ochre continues at present, with at least one source known to
the writer being on land under pastoral lease.
5.5 While the Crown asserts that it has a right to these
minerals, just as it formerly asserted ownership of land, it
has not been demonstrated how and when the Crown acquired or
extinguished these rights from First Peoples.
6 LACK OF CONSULTATION WITH FIRST PEOPLES.
6.0 The Prime Minister has stated that First Peoples have, as
a result of the negotiations he conducted with certain
representatives, agreed to surrender their rights to leasehold
land.
6.1 It is a principle of both European and Aboriginal law that
a person cannot give away more rights than those they actually
possess.
6.3 Significant Aboriginal spokespeople, including Mr Charles
Perkins, have publicly stated that the negotiators only
represented themselves, and were not empowered to conclude
negotiations with the Commonwealth.
6.4 The task of consultation with Australia's First Peoples
has barely begun. There has been no translation of the Native
Title Bill into language which many senior law people
understand. Nor have other culturally appropriate consultative
means been employed.
6.5 The Commonwealth Government does not have the genuine and
informed consent of the indigenous authorities for the
surrender of their common law native title rights to freehold
and leasehold land.
6.6 The thinking contained in the Native Title Bill adopts an
'either/or' approach which is culturally inappropriate when
dealing with First Peoples. In other words, it is dominated by
the wrong kind of thinking and comes up with the wrong
solutions to real problems when dealing across cultural
boundaries.
6.7 This defect could be remedied by the empowered involvement
of senior law men and women of Australia's First Peoples.
7 COMPENSATION
7.0 The loss of living country, as a source its spiritual and
material well-being, cannot (in my opinion) be adequately
compensated for. For First Peoples the land is the eternal
soul. To lose land is to lose the right to be reborn as part
of a cyclical process which (unlike Eastern religions) knows
no end.
7.1 The proper calculation of financial compensation (of even
a similar level of physical well-being) would require the
establishment of a vast sum of capital which would have to
deliver rich yields for unending future generations. I doubt
if the Commonwealth of Australia has access to such sums.
8 CONCLUSION
8.0 In lieu of a bipartisan statement from the Parliament
renouncing past acts of genocide against Australia's First
Peoples by stating that it is Parliament's belief that Crown
titles (freehold and leasehold) do not extinguish native
title, the Bill, Memoranda, and Second Reading speech should
be amended to avoid any expression of a view on whether or not
Crown titles extinguish native title. This would remove a bias
in terms of statutory interpretation for First Peoples seeking
to gain common law recognition of their native title rights.
8.1 Clause 13 should not be passed until the full
ramifications in terms of it validating past genocidal acts
has been exhaustively examined.
8.2 Clause 14 (a) should not be passed until the genuine and
informed consent of Australia's First Peoples to surrender
their rights (including mineral rights) has been obtained.
8.3 All category A past acts should be transferred to category
B. This would allow First Peoples the opportunity to pursue
their common law rights to determine recognition of the
survival of their native title rights to the extent that these
have not been extinguished by inconsistent grant.
8.4 There may be many areas in which there can be a peaceful
coexistence of both forms of title, which would lay the ground
a true marriage of interests. The Commonwealth's Northern
Terrirory could be a showcase to the world as to what the
Australian people can achieve in this regard.
Bruce Reyburn
PO Box 257
Thirroul 2515 Phone (042) 682340
prepared in haste. E.&.O.E.