This is a potted account, written off the top of my head and intend only
to provide a brief overview of a complex picture. For authoritative legal
accounts check out the High Court's Mabo and Wik judgements and associated
commentaries.
CATTLEMEN SET THEMSELVES UP AS EXCLUSIVE LANDLORDS
The lands of Australia's First people were simple taken by British
authorities under a doctrine of terra nullius.
In the 1840's, as cattle and sheep raisers began to invade the living
countries of people away from the major colonial settlements, the
authorities sought to ensure that the Crown estate (as they conceived of
Australia's lands) did not pass into the hands of the pastoralists
(cattlemen),
They introduced the pastoral lease, which licensed the holder to run sheep
or cattle. In some cases these documents also had explicit conditions
which protected the rights of Aboriginal people to enjoy their traditional
rights.
Over the years the holders of these leases came to think of themselves as
exclusive landlords. Controlling the colonial legislative assembles
enabled them to ensure that there was a lack of political will to police
the conditions protecting the rights of First Peoples.
1992 - END OF DOCTRINE OF TERRA NULLIUS
After a two century long struggle, First Peoples gained a degree of
recognition of their native title rights at common law with the High
Court's Mabo (no 2) decision in 1992. The doctrine of terra nullius was
declared obsolete.
This caused a general panic about the 'certainty' of titles and, without
proper consultation with the commonlaw holders of native title rights, the
Keating Labor government rushed through its Native Title Act in 1993.
The primary purpose of this act was to validate existing Crown issued
titles. It was sold in the name of providing statutory recognition of
native title.
The 1993 Native Title Act also put forward the government's view that
native title rights were extinguished by pastoral leases. Read in
conjunction with that Act's definitions, this government view can be
interpreted as being that pastoral leases extinguish native title
irrespective of the degree of inconsistency between the two bundles of
rights.
COMMONWEALTH AND STATES
This has a limited practical impact. In Australia the Federal Government
does not have a leading role to play in land matters. With the 1901
Constitution, land matters remain with the former colonies - now the
States. There are also two Commonwealth Territories of which the
self-governing Northern Territory is of particular relevance in this
matter).
The States and Territories issue pastoral leases and other land title. THe
Australian States are the ghosts of the former colonies, and they embody
the spoils of acquired under the regime of the doctrine of terra nullius.
The role of the Commonwealth government should be to act as a 'civilising'
counterbalance. Should be.
As a result of the 1967 Referendum (and international treaties?) the
Commonwealth has a primary legislative role to play in relation to the
well-being and protection of First Peoples. Howard's government is rooted
in a different interpretation and has recently passed legislation
(Hindmarsh Island Bridge) which seeks to bypass the protection provided to
First Peoples under the Racial Discrimination Act.
The 1975 Federal Racial Discrimination Act was introduced as domestic
legislation to implement aspects of the Convention on the Elimination of
Racial Discrimination.
PASTORAL LEASES AND NATIVE TITLE ACT
Part of the intent of the 1993 Native Title Act, in relation to pastoral
leases, was to validate any leases which may have been invalidly issued
since the passing of that Act.
Perhaps the main importance of the 1993 Native Title Act is that it was
set up as a model for State legislation. Under the Australian
Constitution, Commonwealth (Federal) legislation overrides State and
Territory legislation in the event of a conflict (where that Commonwealth
legislation is the result of a legitimate exercise of its authority).
Largely due to questions of what compensation may be payable to First
Peoples by the extinguishment of native title rights, the States have
adopted a variety of responses to the 1993 Act.
Taking their lead from that Act, there was a general perception that
pastoral leases extinguished native title.
1996 WIK DECISION
In the 1996 Wik decision, the High Court found that the Federal government
had read far too much into the 1992 Mabo decision. In a 4-3 decision, the
Judges found that pastoral lease may (depending on a variety of specific
factors) only extinguish native title to the degree of any inconsistency.
Generally it could not be assumed that the granting of the right to raise
cattle bestowed a right of exclusive possession upon the pastoral lease
holder. These particularly Australian forms of title may not be 'leases'
in more usual senses of the term, but similar to licences.
In other words, native title and pastoral leases may co-exist. The Judges
found that, where there is a conflict between the two, pastoral leases are
dominant. The right to run cattle is placed, by Anglo-Australian law, on a
higher footing than the rights which life itself has devolved upon the law
carriers of the land. Cattle before people.
UNHOLY CAMPAIGN
Not satisfied with this finding, there has been an unholy campaign by
vested Anglo-Australian interests to have pastoral lease extinguish native
title rights absolutely. Many pastoral lease holders want exclusive
possession of "their properties". State government leaders formed the
spearhead of this campaign to deny the rights of their Aboriginal
citizens.
These exclusive landlord forces are represented at the Federal level by
the National Party, which is the junior member of the National-Liberal
Coalition government which won office in 1996. (And the first act if the
new government was to launch a vicious attack on Aboriginal organisations,
thus setting the tone for the subsequent outpouring of racial hatred a la
Pauline Hanson's followers.)
The same doubts about the amount of compensation which would have to be
paid to First Peoples for unilateral legislative extinguishment of native
title rights by pastoral lease appears to have deterred the senior
Coalition partner from going down that path.
10 POINT PLAN
Instead they have opted for what Aboriginal leaders have called
"extinguishment by stealth" - the Howard 10-Point Plan. This is presently
being drafted into legislation which is expected to be introduced into
Parliament this month.
The basic formula of the plan is to avoid, as far as possible, having to
pay compensation to First Peoples and - at the same time - remove or
restrict the operation of their native title rights. The rights of
pastoral lease holders (and mining companies) in comparison, are
upgraded.
POINT 5 - THE LEGISLATIVE LOCKED GATE
Under Point 5 of the plan, for example, surviving native title holders
will have to demonstrate that they currently have physical access to lands
under pastoral leases before their rights will be recognised by the
State.
Given the history of locked gates and other forms of intimidation (from
bluff, bullying, whips and murder) by which people have been driven from
their living countries in many parts of Australia, this condition provides
a direct reward to the heir of genocidal practice and, once again, commits
an injustice on First Peoples.
It is also contrary to the culture of First People whose Way or law
provides non-physical means of relating to country when there is a major
physical obstacle.
Point 5 of the 10-Point Plan, at very least, imposes an ethnocidal
condition on First Peoples. More probably, given that importance of access
to the spirit carrying foods of living country and the importance of
access to the sacred religious sites on country, it is a genocidal
condition.
People have spiritual - not merely physical - access to their living
countries. Under Howard's plan, the spiritual dimensions of life will be
rendered invalid in the name of the superiority of the physical.
PROCESS - RIGHT TO NEGOTIATE
Another source of concern with the 10 point Plan is the restriction of the
right to negotiate in relation to mining matters.
Being involved in negotiations in relation to activities on the land lies
at the heart of the duties bestowed on First People by their Way. It is a
question of process and energy flows. This is not appreciated by minds
fascinated by the fetishes of objects (and commodities for commercial
consumption).
It is life affirming to be recognised and part of the negotiation process.
It is life denying to be excluded from this process.
FROM OFFICIAL DOCUMENTS ON THE 10 POINT WIK PLAN:
Key legislative elements of the package
...
6.Future mining activity.
For mining on vacant crown land there would be a higher
registration test for claimants seeking the right to
negotiate, no negotiations on exploration, and only one
right to negotiate per project. As currently provided in the
NTA, states and Territories would be able to put in place
alternative regimes with similar right to negotiate
provisions.
For mining on other "non-exclusive" tenures such as current
or former pastoral leasehold land and national parks, the
right to negotiate would continue to apply in a state or
territory unless and until that state or territory provided
a statutory regime acceptable to the Commonwealth which
included procedural rights at least equivalent to other
parties with an interest in the land (e.g. the holder of
a pastoral lease) and compensation which can take account
of the nature of co-existing native title rights (where they
are proven to exist).
A CUNNING PLAN
Some comment is relevant here. Firstly, this 'cunning plan' would (in the
name of equality no doubt) seek to restrict native title rights in respect
to minerals to parity with those (such as pastoralists) whose Crown grants
specifically excluded rights in relation to minerals.
In recent days John Howard has been putting forward the view that the
right to negotiate does not stem from the character of native title rights
and/or the High Court's decisions. He promotes the view that this right is
entirely a creature of the Keating Government's 1993 Native Title Act.
That is a direct attack on the cluster of rights which constitute native
title and must be read (i think) as part of a process of paving the way to
commit further acts of ethnocide and genocide.
The right to negotiate in regard to country lies at the centre of ensuring
the well-being of those people charged by their own law with properly
maintaining it. Getting this PROCESS right is as important as ensuring a
fair exchange for resources appropriated.
ANGLO-AUSTRALIAN REFUSAL TO REFORM
Australia's First People's continue to die at alarming rates. Their
standard of well-being is the worst in the Australian population on all
indicators. The picture is getting worse despite the rhetoric of
politicians of all persuasion on "housing, education, employment and
health".
That too is a enthnocidal formulation which seeks to reshape the lives of
First Peoples to comply with a Western norm as part of a refusal to reform
those norms and provide space - within the mainstream - for First Peoples
to live as First Peoples.
It is the enforced and unbending Western Way which is killing the people
whose lives represent the very country itself.
Howard's 10 Point Plan is part of this refusal to reform Anglo- Australian
life. He belongs to an imperial past which insists that Western Ways are
king in Australia. These Western Ways have destroyed the land and many of
its people in the last two centuries.
The cost of the refusal to reform will be borne by surviving First Peoples
in the first instance and, by virtue of their exclusion from their
rightful place in the affairs of life on this planet, by the rest of us in
the final analysis.
Please do not let Howard's Wrongheaded 10-Point Plan pass into Australian
law.
Bruce Reyburn 19 June 1997