Aboriginal Land Rights

Aboriginal Land Rights Introduction

Aboriginal Australians have always had an eternal bond with the land. For the 50,000 years or more, they have occupied the continent; the land provided not only the basic needs, but also the spiritual beliefs. In the Dreaming, the forms of the land, mountains, rivers, landscapes and animals took shape and the spirit of ancestors resided in places that became sacred sites to the Aboriginal people. The land to these people were their most precious commodity.

When white settlement began in Australia in 1788, the concept of terra nullius {the land belonging to no-one} was adopted by the British. This was assumed because the Aboriginals had not cultivated the land, so it was uninhabited. However, the Mabo Case in 1992 changed this notion.

The Mabo Case 1992

In May 1982, Eddie Mabo and four other Meriam people of the Murray Islands in the Torres Strait area went to the High Court of Australia, seeking confirmation of their traditional land rights. They claim that Murray Island or Mer, and the surrounding islands and reefs had been continuously inhabited by the Meriam people, but accepted it as part of Queensland. However, they believe their native title rights still existed.

This case was heard over ten years through the High Court and the Queensland Supreme Court. On June 3 1992, the High Court ruled by a majority of six to one that the claim that the lands of Australia were not terra nullius and that the Meriam people were entitled to the land of the Murray Islands.

The common belief that Australia was terra nullius was struck down and that native titles overruled settlement. The judgment contained the statement that the common law was unjust and did not respect Aboriginals as equals before the law. It also found it was out of step with international human rights and that Aboriginals had been dispossessed of their land rights unlawfully.

Native Title Act 1993

After the Mabo case which recognised the existence of native title rights, Land Councils lobbied the Federal Government to legislate to protect any native title that had survived 200 years of ...

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Native Title Act 1993

After the Mabo case which recognised the existence of native title rights, Land Councils lobbied the Federal Government to legislate to protect any native title that had survived 200 years of colonisation.

The Native Title Act 1993 is part of the Commonwealth Government's response to that historic High Court decision. The Native Title Act came into operation on 1 January 1994

The Act does five things:

It recognises and protects native title.
It provides a regime to enable future dealings in native title lands and imposes conditions on those dealings
It provides for the validation of any past grants of land that may otherwise have been invalid because of the existence of native title
It establishes a regime to ascertain where native title exists, who holds it and what it is, and to determine compensation for acts affecting it.
It creates a land acquisition fund to meet the needs of dispossessed Aboriginal and Torres Strait Islander peoples who would not be able to claim native title.

Wik Case 1996

After the Mabo Case resolved the land rights dilemma of Aboriginals, there were unresolved conflicts on the issue of pastoral leases, which take up a significant 42% of land in Australia and 93% in the Northern Territory.

These pastoral leases were a form of land lease unique to Australia created by the British Colonial Office after concern by British officials over the massive land grab by squatters in the 1830's and 1840's. The lease stated the leases did not grant squatters exclusive possession, but that the land was owned on behalf of the Australian public by government.

Aboriginals argued that native title rights co-existed with pastoral leases, while the government claimed that the mere granting of a pastoral lease last century extinguished native title, even though the land was never developed. These blocks of undeveloped were called “ghost leases” and many of them are still empty.

The pastoral leases allowed exclusive rights of use of the land to graze animals, but not exclusive rights of ownership to the land. However, the court ruled that native title rights could co-exist side-by-side with the rights of pastoralists on cattle and sheep stations. But it said that when pastoralists and Aboriginal rights were in conflict, the pastoralists' rights would prevail, giving pastoralists certainty to continue with grazing and related activities.

Despite this, the Wik decision led to a hysterical attack from pastoralists and conservative leaders, who demanded that native title be extinguished, or wiped out, on pastoral leases. The Howard Government used the decision as an excuse to severely attack native title rights with its Bill, also known as Howard’s Ten Point Plan.

The Wik Bill (a.k.a the Ten Point Plan or Native Title Amendment Plan)

The Wik Bill was created due to the High Court’s ruling that Aboriginal and pastoral leases can co-exist together. The government constructed a bill that stated that:

All pastoral leases, even if they are uninhabited, are validated.
Pastoral leases now erased by freehold, residential and commercial leases.
Aborigines lose the right to negotiate over third-party acquisition of land in towns and would be stop the actions of municipal services.
Pastoral rights would prevail over native title rights. Farmers would be allowed to do activities related to primary production.
Once Aborigines have passed a registration test they would be able to have access to a pastoral lease, if they can prove a current physical connection.
Fewer Aboriginal negotiation rights for mining leases.
Aborigines would have no right to negotiate over vacant public land in towns and cities.
The Government's power over water management would be non-negotiable.
Changes in the native title claims process.
The establishment of a contract to allow voluntary but binding agreements between Aborigines and other parties.

This Bill, launched by Prime Minister John Howard, was labelled as “racist by the UN and many Aboriginal groups lobbied against it. However, even with public disapproval of the Bill, it was passed through Parliament with great controversy.

b) Discuss how the cases and Acts above have helped the reconciliation process. What other areas also need to be addressed to achieve reconciliation?

The cases above helped create reconciliation between Aboriginals and Australians because Aboriginals and the general public gained more awareness of Aboriginal Land Rights through court cases such as the Mabo and Wik case and legislation such as the Native Title Act. However, some legislation, such as the Wik Bill or the Native Title Amendments have been clearly discriminatory towards Aboriginals.

Other areas that also need to be addressed to achieve reconciliation include:

Acceptance of Aboriginal culture
Equal treatment of Aboriginals
Educating young Australians about Aboriginal culture to gain greater understanding
Educating young Aboriginals, leading to the next point:
Greater employment rates of Aboriginals
Less scrutiny and harassment by police

With these areas addressed, Aboriginals and Australians can live together in peace and harmony with reconciliation between these two groups.

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