ANNUAL REVIEW - THE COMMONWEALTH OF AUSTRALIA'S NATIVE TITLE ACT
1993
To Mr M Dodson
Aboriginal and Torres Strait Islander Social Justice
Commissioner
OPENING REMARKS.
The 1993 Native Title Act of the Commonwealth of Australia can be
seen as the ultimate padlock on the gate of Australia's
productive lands - locking out, for all time, the original people
from their birthright countries.
This time the keep-out padlock carries with it the full force of
the Anglo-Australia State.
The Native Title Act, by putting into statute law the unilateral
extinguishment of the rights of Australia's First Peoples, is
part of a pattern of consistent violation of the human rights of
Australia's First Peoples by Anglo-Australian authorities.
In time, this will lessen the reputation of the Crown and of the
non-indigenous people of Australia.
The extinguishment provisions of Section 15 (1) of that Act mean
that the life-creating songs of the senior lawmen are to be
permanently replaced by the mournful bellowing of bullocks over
most of the living continent.
The Native Title Act, like the High Court's judgement which
preceded it, seeks to incorporate the prejudices of previous
centuries into contemporary life. These prejudices, such as there
being a hierarchy of cultures, have been passed off by European
powers as 'international law'.
We are told that Crown issued titles mystically extinguish the
original relationships by the curious workings of some superior
force.
This law is better viewed as an purely European arrangement which
seeks to incorporate a market-place mentality into the
relationships between peoples. Rather than 'international law' we
do well to see it for what it is - rules for the regular
exploitation of Europe's 'overseas possessions'.
The so-called international law owes nothing to an international
dialogue in which the wisdom of First Peoples generally, and of
Australia in particular, has had an opportunity to both express
itself and to ratify the proposed rules of life between peoples.
By what means can the actions of a sovereign be justified as
valid when those actions purport to unilaterally extinguish the
transcendental relationship between First Peoples and their
living countries?
Sovereigns are not, and have never been, empowered to commit
genocide. That this is so has been formally acknowledged by the
United Nations since 1951.
Instead of seeking to incorporate the prejudices of the past into
Australian law, the Commonwealth Government should be seeking to
achieve standards of best practice in its Territories as
benchmarks for the Australian States.
Given the history of events in Australia, and the lack of a
formalised relationship between the original and colonial
peoples, best practice would take the form of co-existent
sovereignty.
Australia is a unique place.
In the early 1980s, senior lawmen took me to a special Dreaming
site within view of the Epenarra (N.T.) homestead and informed me
that while the whitefella ran the cattle, they ran the business
for the rest of the country. Their cultural practices operate as
governors of the ecosystem, ensuring that life reproduces itself
in an orthodox manner.
Prevented from carrying out their practices, life runs wild.
While the European form of international law has yet to
accommodate a truly bi-cultural arrangement for life, the failure
of European powers to recognise Australia's First Peoples for two
centuries has resulted in the stagnation of the development of
that form of law.
With the collapse of the pretence of the doctrine of terra
nullius, it is now time to address the challenges posed by the
survival of both the original Australian peoples and their
practices.
Rather than responding creatively to that challenge, the
Commonwealth Government has attempted to bury the problem.
By seeking to drive home the legislative nails in the coffin for
life represented by the extinguishment provisions of the Native
Title Act the Anglo-Australian Government has moved from a de
facto to a de jure process of genocide and ethnocide.
Those seeking to impose European practices on First Peoples, by
locking people out of lands reserved by the Crown for cattle-men,
can expect a difficult time.
It was explained to me by a now deceased Warumungu Jappanangka,
the son of the anthropologically famous Zulu Jappanardi, that
the Old People are still in the ground and will re-emerge when
properly addressed.
Significantly we were on part the Phillip Creek pastoral lease in
the Northern Territory at the time Jappanangka told me this.
Final solutions premised on 'biological' notions of life and
death do not capture the metaphysical reality the relationship
people have with their creation countries.
The history of Aboriginal policy in Australia has demonstrated
that it is pointless attempting to forcefully impose solutions
which do not adequately incorporate the cosmology of First
Peoples.
THE NEED AND RIGHT FOR RECOGNITION.
History has repeatedly demonstrated that the human need for
recognition is fundamental. People with water, food and shelter
will sacrifice their lives for recognition.
Recognition for what you are is the most fundamental human right.
Life without recognition is an intolerable suffering.
In the context of Australia's First Peoples, where live is
acknowledged as being generated by the creative forces in the
country; where self is identified in terms of features of the
land; where rights and obligations are framed in terms of a
highly complex and evolved system which can only operate when it
is well and truly earthed to the land; where land, in short, is
the eternal soul - in this context, there can be no recognition
which does not include an acknowledgement of the relationship
between peoples and their living counties irrespective of
European notions of boundaries and exclusive land ownership.
By failing to recognise the relationship between First Peoples
and their living countries in favour of more recent grants of
freehold and leasehold titles, the Crown has failed to affirm the
Being of the very people who can be said to represent the living
spirit of the country itself.
The unholy extinguish provisions of the Commonwealth's Native
Title Act must be repealed - or the whole structure which
supports those provisions must stand condemned.
The interests of the whole of life require that we formally
recognise, not unilaterally extinguish, the relationship between
First Peoples and their living countries.
FUNDAMENTAL FLAW.
In my opinion the Native Title Act of 1993 is fundamentally
flawed and flawed in a way which has serious negative
consequences for the rights and well-being of Australia's First
Peoples.
By following the precedent laid down by the High Court of
Australia, in its M*bo No 2 decision, the framers of the Native
Title Act introduced into the legislation the fallacy that the
unilateral extinguishment of native title rights can be regarded
as a valid exercise of sovereign power.
The High Court argued that, in common law, the Crown extinguished
native title rights completely by the grant of freehold estates
and (perhaps to the extend of any inconsistency) by certain forms
of leasehold.
As the Australian Crown had previously presumed that these rights
did not exist, there was no pre-existing statute law to this
effect. The Commonwealth's subsequent Native Title Act attempts
to fill this void, as it were.
The Native Title Act converted that part of common law into
statute law, by including grants of freehold estate and
commercial, agricultural, pastoral and residential leases in
category A past acts.
Unlike category B past acts, category A past acts extinguish
native title without qualification.
The Government and Parliament of Australia demonstrated a clear
and plain intention to legislate to extinguish the native title
rights of Australia's First Peoples in favour of the rights it
had granted to others.
I believe that this avenue was no longer open to the Australian
Government.
The proper course of action for the Crown if it wishes to make
valid grants in Australia requires that it:
(a) recognises the existence of indigenous relationships
with land, and
(b) enters into mutually acceptable arrangements with the
indigenous authorities concerning the terms and conditions of
such grants.
The relationship between Australia's First Peoples and their
living countries is such that to unilaterally separate them from
their countries is an act of genocide and ethnocide.
ETHNOCIDE
The Native Title Act can be seen as part of a process of
ethnocide.
Pierre Clastre put it this way:
If genocide refers to the idea 'race' and to the will to
exterminate a racial minority, ethnocide does not point to
the physical destruction of a people...but to the
destruction of their culture. Ethnocide is therefore the
systematic destruction of the modes of life and thought of
people who are different from those who carry out this
destructive enterprise. In short, genocide kills their
bodies, while ethnocide kills their spirit.
The original Australian culture is tied to the land. Its messages
are sung into the features of the land, and they are released by
travelling across the land. To be denied access to country is to
be denied access to the greater part of your cultural
inheritance.
By legislatively extinguishing the rights of surviving First
Peoples to the resource base of their countries, people are being
transformed - for all time - into a landless working class in an
alien way of life.
GENOCIDE
Sociologist Irving Horowitz defines genocide as "a structural and
systematic destruction of innocent people by a state bureaucratic
apparatus."
An estimated 95% of surviving First Peoples in Australia are
expected to be deprived, by the Anglo-Australian State, of
recognition of their relationship to their birthright countries.
I believe that an example of the workings of the State's
bureaucratic apparatus can be seen in the recent decision of the
Registrar of the National Native Title Tribunal not to accept an
application by Waanyi people on the grounds that, as calculated
by Anglo-Australian law, they had not established a prima facie
case.
That decision is a step in a process which will also involve the
Federal Court, and probably the High Court. The process will
return to the decision made by the Cabinet of the Commonwealth
Government to ensure that pastoral leases extinguish native title
leases without qualification.
And should people chose not to accept the Anglo-Australian
definition of the situation, they will run into the workings of
the State apparatus in the form of the police, magistrates,
jails...
The State's bureaucratic apparatus will deprive innocent people
of the lands necessary for their physical, mental, and spiritual
well-being.
The United Nations Convention on the Prevention and Punishment of
the Crime of Genocide states that:
genocide means any of the following acts committed with
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.
The consequences of the mass extinguishment of native title
provisions of the Native Title Act, when examined in terms of the
cultural beliefs of Australia's First Peoples, can be found to
fall into a spread of these acts.
Genocide Australian style can be seen in conditions in the
Commonwealth's self-governing Northern Territory.
Over the years the more visible process of Australian genocide
has altered its form from the savage shootings and massacres of
earlier days.
Today it works, like a slow poison, invisibly.
EXAMINATION OF OUTCOMES
When means change in this way, so that you cannot point to a
particular act, you have to work backwards from known outcomes to
locate the forces at work. The trail leads to the policies of
Anglo-Australian governments.
What can be readily seen in the Northern Territory is that,
despite reservations in pastoral leases to the contrary, large
areas of land which once supported people are now monopolised by
the cattle of non-indigenous people.
Surviving First Peoples have usually been driven off their lands,
by one means or another, and are either living in the
pathological conditions of fringe camps in towns or confined to
the misnamed community living areas excised from pastoral leases.
The country towns provide no culturally appropriate means of
satisfying the requirements for living. Under the enforced
conditions of life in European style towns, sexually transmitted
diseases are presently providing a clear indication of the fate
which is being marked out for surviving First Peoples.
What the guns and poisons of early times did not achieve will be
achieved by AIDS - but only so long as it operates in concert
will the policies of confinement of the Anglo-Australian
government.
The so-called community living areas away from towns are so tiny
they are totally incapable of supporting life. People, seeking
sacramental foods, are not allowed outside of the paddock which
encloses them because they might upset cattle on agistment.
Both town camps and excisions are modern day means of enforced
confinement. Anglo-Australia's monocultural governmental policies
operate to prevent the culturally appropriate meaningful activity
necessary to combat anomie and alienation.
STRESS AND PRETENCE
Not only are people physically confined they are also subject to
an enormous degree of stress.
The primary source of this stress is the refusal of the State to
affirm their Being by providing culturally appropriate
recognition of their relationship to their living countries.
Stress is a silent and efficient killer, which leaves few tracks.
It drives people to both create havoc for others and to destroy
themselves. While European 'experts' maintain a politically
convenient narrow focus of analysis, the origins of the
pathological process comes from wider afield.
State sanctioned stress is the ultimate in sophisticated weaponry
in the psychological war which has marred life in Australia since
1788. This war has been waged against First Peoples by Europeans
seeking to expropriate the resources of First Peoples.
The invisible forces of State sanctioned stress select those
people who, by virtue of their enculturation, tend to have the
values of the original culture at the core of their personality.
A flip-side of the with-holding of recognition is that which
promotes Western style achievement. When the cost of this is that
part of Being which originates from indigenous life, the process
can be seen as a continuation of the failed policy of
assimilation.
In place of genuine cross-cultural dialogue, we have an enforced
monocultural monologue.
Many First Peoples, on that side of life removed from things
European, are already under extreme stress. To be also subjected
to State imposed experiments in the name of 'raising standards of
living' is an additional burden.
Instead of being 'raised up' the real interests of these people
require the State's policies to come down to earth - to provide
recognition of their relationship with their living countries.
In place of the havoc of 'sit-down' money going the wrong way,
and undermining traditional authority, the payment to the
indigenous authorities of a resource rental is required. First
step in this process is recognition of those indigenous
authorities and their place on the land.
But in an OZ which results from two centuries of wrong way
living, under the doctrine of terra nullius, everything is arse
about face.
Senior men showing you sacred boards on land under the
Rockhampton Downs pastoral lease, boards which are the title
deeds under the original system of law from time immemorial, are
held to have the lesser rights to the country than distant
shareholders in the pastoral company.
For those First Peoples who are unable or unwilling to sacrifice
that part of themselves to the pretences of a supreme Anglo-
Australian system of order, life is one of conflict with those
who uphold the standards imported from elsewhere.
In the 1980s and 1990s, senior men in the Northern Territory,
whose greater self is the landscape itself in land held under the
Kurundi pastoral lease, were driven off the country by a
headstrong pastoralist who was going to beat reality into shape.
The quality of their lives was greatly reduced. Some died
prematurely. Important Dreaming sites were bulldozed recently.
Conflicts caused by the lack of official recognition drive people
to alcohol, substance abuse and other forms of 'self-
destruction'. People are imprisoned and die in custody at high
rates.
What is particularly noticeable in the Northern Territory, as
made obvious by the Curtain Springs issue, is that the Northern
Territory government refuses community requests to control the
destructive flow of alcohol. Alcohol made available in this way
can be seen as a modern means of genocide. State policy is a key
ingredient in this lethal mix.
PREMATURE DEATH OF SENIOR MEN
One outcome which is of particular significance is the age of
death for men.
When senior men die in their earlier fifties the usual pattern of
cultural transmission is prevented from getting into high gear.
The traditional pattern of cultural transmission requires a
significant number of men to live into their sixties and beyond.
The position of men is of special importance as they are the ones
whose Being is most denied by the State.
Their role can be viewed in terms of carrying out practices which
serve to govern the reproduction of the ecosystem. This has been
well documented by anthropologists. The relationship of senior
men to country is not merely that of rights but also of
obligations to care for that country.
This is a sacred trust which does not originate from the Crown,
nor is it one which can be unilaterally extinguished by the
Crown.
Western understanding refuses to recognise the reality of the
land/life management practices of the senior men. Western
science, as an obedient servant of its commercial masters, is
silent in respect to the crucial role played by the original land
and life managers of Australia.
Since these practices are part of the original form of life's
government in Australia, it is understandable why the Anglo-
Australia authorities are reluctant to renounce the doctrine of
terra nullius and admit the existence of another form of
'government'.
LIFE FORCED INTO EUROPEAN CATEGORIES
Rather, an extension of the assimilation policy is proffered
which insists that First Peoples will accommodate themselves in
the boxes of European categories - the ritual incantation of this
process of confinement runs "housing, health, education,
employment." And, it must be added, coffins.
This process of ethnocide is offered by Anglo-Australian
authorities, in the name of fairness, instead of providing
recognition of First Peoples for who they are and for paying them
for the use of their resources.
Denied access to their living countries by pastoralists (aided by
the lack of will by governments to police reservations in leases)
First Peoples are denied direct contact with their greater
parents - the generative forces in the land itself.
People with an understanding of the beliefs of First Peoples will
realise that the act of separating First Peoples from their
living countries is, at least, as great a crime as is removing
children from their human parents.
Specifically, denied access to living countries means to be
denied access to the sacramental foods which are part of the very
tangible covenant between people and country. Foods from your
country carry messages crucial to your well-being. These foods
cannot be purchased in European style shops.
Denied access to living country means that the process of
reproduction, in which life comes from the country, is grossly
interfered with. Anthropologists have well documented the role of
ancestral forces in conception (eg Strehlow, Meggitt). Children
conceived on the lands of others may result in a loss of children
to the group.
The conditions of life imposed on First Peoples, by an Anglo-
Australian government which has clearly demonstrated its
determination to monopolise the bulk of the productive land,
are not conditions under which the majority of First Peoples can
either thrive or continue to be First Peoples.
Instead of being able to live according to their own values, they
have to live under the stressful conditions of pretending to be
Westernised.
And that pretence is necessary to maintain a larger pretence -
that the Westminster system is capable of properly governing the
lives and living countries of First Australia. The evidence to
the contrary is overwhelming.
The suffering of Australia's First Peoples is the price paid by
maintaining the fantasy of an empty continent and the wishful
thinking that the Crown can unilaterally extinguish the
relationship between First Peoples and their living countries
without substituting something of equal value in return.
While some First Peoples will be able to adapt to Westernised
conditions, and preserve that part of their Being which derives
from First Australia, for most people the unilaterally
extinguishment provisions of the Native Title Act will place them
in an intolerable position.
It can be argued that the intolerable conditions imposed on life
by Anglo-Australian authorities predate the Native Title Act, and
therefore they do not owe their existence to that Act.
Quite so, but the Native Title Act represents - for the first
time - a clear choice by the Australian Parliament to respond to
the factual situation. The de facto reality is 'upgraded' into a
de jure reality of State policy by the provisions of the Act.
THE QUESTION OF INTENT - CLEAR AND DELIBERATE
Rather, it is the question of intent which must be addressed. It
could be argued that these consequences, if real, are unintended
and not deliberate.
To counter this, it is only necessary to read some of the
speeches which accompanied the passage of the legislation to be
convinced that those who voted to pass the Bill were very well
informed about the fundamental importance of the relationship
between First Peoples and their living countries.
The speeches of the Member for the Northern Territory in the
House of Representatives, and of Senators for the Northern
Territory, demonstrate a well-developed understanding of the
fundamental importance of land for First Peoples.
The Members of Parliament knowingly voted for legislation which
extinguished the native title rights of First Peoples where the
Crown had granted titles to others. In the case of pastoral
leases, it must be added, this reversed the original intent as
expressed by colonial authorities (see Reynolds).
As an additional indicator of intent, a clear and deliberate
choice was made to place grants of freehold estates and
commercial, agricultural, pastoral and residential leases into
category A past acts which extinguishes native title without
qualification.
Other options (such as placing pastoral leases in Category B past
acts or recognising the co-existence of both forms of title) were
knowingly by-passed. Prime Minister Keating had addressed the
House on the co-existence possibility.
But the Prime Minster's Second Reading speech and his comments to
the media at the time make it perfectly clear that he chose the
option of totally extinguishing the native title rights,
unilaterally and by legislation, where the Crown had issued
grants of freehold and leasehold.
My understanding is that perpetrators of genocide may be punished
whether they are constitutionally responsible rulers, public
officials or private individuals. Genocide is not merely a
domestic or internal matter, but a cause of international
concern.
If this is correct, then the exercise of a sovereign power which
results in genocide is not a valid exercise of that power.
In my opinion, the unilateral extinguishment by European States
of indigenous rights to their ancestral lands has never been a
valid exercise of sovereign power. There is no divine or natural
right for European States to unilaterally extinguish the
relationship between First Peoples and their living countries.
As far as I can determine the supposed hierarchy of cultures,
which places a superior value on European titles, has no basis in
fact or in law. (see, for example, Levi-Strauss)
Irrespective of that, after the United Nations' Convention went
into effect in 1951, the avenue by which the Commonwealth of
Australia could demonstrate its clear and plain intention to
unilaterally extinguish the native title rights of Australia's
First Peoples was no longer open.
Not only does such an action by the Crown result in a gross abuse
of the rights of those First Peoples whose native title is
extinguished, it also endangers the reputation of non-indigenous
citizens by bringing them into international ill-repute.
The Commonwealth legislation provides the ground rules for
similar legislation by the Australian States and Territories.
The Native Title Act, to the extent that it attempts to
extinguish the native title rights of Australia's original
people, should be repealed.
I draw your attention to Section 59 of the Australian
Constitution:
The Queen may disallow any law within one year from the
Governor-General's assent, and such disallowance on being
made known by the Governor-General by speech or message to
each of the Houses of the Parliament, or by Proclamation,
shall annul the law from the day when the disallowance is so
made known.
The Native Title Act, as you will be well aware, was assented to
on 24 December 1993.
Finally, the Australian Parliament has an opportunity to
demonstrate that the genocidal and ethnocidal consequences of the
extinguishment provisions of its Native Title Act were not
deliberate by repealing those provisions of that Act.
References
Clastre, P 'On Ethnocide' reprinted in Art and Text No 28
1988
Horowitz, I 'Genocide: State Power and Mass Murder'
Transaction Books, New Brunswick 1976
Levi-Strauss,C. 'Race and History' in "La Question raciale
devant la science moderne" (Paris, UNESCO 1952)
reprinted in 'Structural Anthropology Vol 2'
Meggitt, M.J. 'Desert People' Angus and Robertson, 1962
Reynolds, H 'Native Title and Pastoral Leases' in "M*bo: A
Judicial Revolution" ed. Stephenson, M. &
Ratnapala, S. Qld. Uni Press 1993
Strehlow, TGH 'Aranda Traditions' Johnson Reprint Corp 1968
Submitted by Bruce Reyburn, PO Box 257, Thirroul NSW 2515