Australian Aboriginal Property Rights Under Threat

Author

It took over 200 years to achieve, and it is described as the single most important legal decision in Australian history. In 1992, Aboriginal and Torres Strait Islander native title property rights were recognized by the highest court in the land. In 1997, these rights are under threat. Mining companies and other developers assert that the Native Title Act 1993, enacted by the federal government, has given indigenous people too much power over development. They are insisting that the law be changed to reduce or annul most of the rights established by the court decision.

Miners, ranchers, and other developers generally do not want to negotiate with indigenous people. This reluctance is partly based on the view that if Aborigines and Islanders have powers of consent or the right to negotiate over what happens on their traditional land, they will block all development.

Such a view is unjustified and I base my argument on the experience of Aborigines in Australia's Northern Territory. The Aboriginal land Rights (Northern Territory) Act of 1976 gave indigenous people in the Northern Territory veto power over development on their lands. Nowhere else in Australia is this the case. While in the 1970s and 1980s Northern Territory Aborigines used their legal powers to block the potential desecration of their sacred lands; today, they are apt to enter into negotiated settlements with companies wishing to do business with them.

My aim is to lend support to the view that just as developers in the Northern Territory have learned to live with the Aboriginal Land Rights (Northern Territory) Act, developers in other parts of Australia must also learn to live with the Native Title Act. If there is ever to be reconciliation in Australia between indigenous and non-indigenous people, all Australians must accept that Aborigines and Islanders, the first inhabitants of Australia, have land rights and the days when these rights could be ignored are truly over.

Native Title and Negotiated Agreements

As a result of the 1992 High Court case, more commonly known as "Mabo," and the Native Title Act of 1993 that protects the native title interests of Australia's indigenous people, Aborigines and Torres Strait Islanders are now recognized as the prior owners of Australia. This legislation acknowledges that many were dispossessed of their land and seas by European settlers without compensation.

For many non-Aboriginal Australians, however, there is a reluctance to see the court decision as an important landmark in the building of the nation. Instead, there appears to be an escalating fear that indigenous people are going to claim all of Australia and that the standard of living of "middle" Australians will decline if indigenous people are able to impose their will in development.

The Native Title Act enables the National Native Title Tribunal to mediate and negotiate agreements between indigenous people and primary producers and developers. It also processes native title applications from indigenous groups. The number of applications lodged with the tribunal to date indicates a willingness of Aborigines to assert their birth right and enter into the native title mediation process. After one year of operation, 43 applications were filed; after two years, 168. Midway through 1997, over 300 applications had been processed. In each case, the tribunal arranges for mediation conferences to determine whether a negotiated settlement can be reached between the parties. If not, the application is referred to a Federal Court for judgment.

The Mabo decision was undoubtedly a momentous one for Aborigines and Torres Strait Islanders alike. The Native Title Act gives them right to sit down and talk with developers. Some groups have never before been in a position of control over their traditional land and sea interests, what Aborigines refer to as "country." In a similar way, few developers have had experience in consulting with Aboriginal groups and one gets the impression that they wish to keep it that way.

One objection of developers is that Aborigines and Islanders wishing to claim rights do not need a government document to prove their attachment to country. They need to show that the government has not already extinguished their native title property rights by giving a third party the power to exclude others. Under the act, indigenous people must also be able to show that they have maintained their connection with the land in accordance with their traditional laws.

At first, some Aboriginal leaders were skeptical about how beneficial the Native Title Act might be, speculating that perhaps only 5% of Australia's indigenous population would be able to enter the process of negotiation. Today, it is acknowledged by Aborigines and non-Aborigines alike that despite the fact that many indigenous people were dispossessed of their land following colonization, Aboriginal property rights continue to exist on perhaps 80% of the continent. Because this is sending shock waves across the country, one must look to the Northern Territory, where indigenous people enjoy comprehensive land rights. A picture emerges as to what might happen in the rest of Australia over the coming years as indigenous people become familiar with the Native Title Act 1993, and Australians learn to live with the Mabo High Court decision.

History of Consultation in the Northern Territory

Today in the Northern Territory, any decision by Aboriginal land owners can be over-turned by the government if a development project is seen to be in the national interest. In the past, consultation with Aborigines by miners or governments was never considered; Aborigines were completely powerless.

Prior to 1976, miners had unrestricted rights to access Crown land, but had to negotiate with the Crown or the Northern Territory administration for permits to operate on Aboriginal reserves. The mining lobby enabled reserve areas to be exhumed or closed and relocated if a substantial find was made.

Policy, in relation to mining on Aboriginal land, was geared toward the non-Aboriginal view of the "Aboriginal problem." In the early 1900s, legislation was based on the concept of protection and preservation. According to J. Harris, mining was not permitted on reserves or near Aboriginal communities because they would be at the mercy of corrupt "whites."

In the 1950s, locating mining and townships adjacent to centers of Aboriginal populations was seen as a necessary means of bringing Aborigines into the mainstream of Australian society This assimilation policy meant that rather than enjoying the land as Aborigines saw fit, they were now expected to make reserve land work for them. J. Altman argues that governments saw mining as a chance for economic development in remote areas paid by the private sector, not the public purse.

The next major policy shift came in the 1970s in the wake of the Gove land fights case, the first time that Aboriginal property rights came under the national spotlight. In the 1960s, Aborigines living at Yirrkala in north-east Arnhem Land took the Nabalco mining company and the federal government to court to determine who owned the land. As it is well documented, Justice Blackburn decided that while Aborigines belonged to the land, it did not belong to them. The court did not recognize communal or group land interests and the decision was that Aboriginal property rights had been wiped out with the assertion of sovereignty by the British in 1788. The failure of the Yirrkala Aboriginal protest and court case resulted in a commission of inquiry into granting land rights to Aborigines m the Northern Territory. This led to the Aboriginal Land Rights (Northern Territory) Act 1976 and the establishment of land councils to pursue land and sea claims on their behalf.

This act enabled Aborigines, who make up 25% of the Northern Territory population, to gain freehold title to former reserve areas. Through the claims process, they now have title to over 240,000 square kilometers or nearly 50% of the Northern Territory's land mass. The form of title is inalienable freehold; it cannot be sold or given away so that Aboriginal groups hold title, not just for themselves, but for future generations.

Having been granted consent powers over development in 1976, Northern Territory Aborigines spoke about their land from a position of authority for the very first time since colonization. While the Northern Territory Land Rights Act was to be a model for the implementation of Aboriginal legislation across Australia, this has not materialized. Since 1976, all Australian states, with the exception of Western Australia, have passed some form of land rights laws, but none are as comprehensive as the Northern Territory's law. For indigenous people in other parts of the country, it was only in 1992 with the Mabo High Court case, that the Blackburn decision was overturned. Aborigines Australia-wide are having their first taste of real power.

This is not to say that the situation in the Northern Territory is ideal. The Aboriginal Land Rights Act (Northern Territory) 1976 is criticized by Aborigines and non-Aborigines alike for its shortcomings. From the developers' viewpoint, there is resistance to negotiating with indigenous people. From the Aboriginal viewpoint, the Act makes it mandatory for Aborigines to negotiate. They must respond to all requests for meetings with mining company representatives and are often overloaded with consultations. But this is far more preferable than a few Aborigines and Islanders having the right to negotiate over development on certain lands, and the federal government has publicly stated that it is considering removing even this right.

Lessons from the Northern Territory

Can one predict what might happen over the next ten years as Aborigines assert their native title rights Australia-wide? From my experience working with Aboriginal groups in the Northern Territory and Queensland over the past 17 years, one can assume that some Aborigines will initially use their negotiation rights to try and stop development. If one looks back to 1985, Aborigines in the Northern Territory used their veto to reject 20 mining exploration license applications lodged by ten mining companies. The perception was that mining was culturally and socially destructive. Yet today, it is more likely that Aboriginal people will agree to open up at least part of their lands for exploration.

Why the change? Without a doubt, the fact that mining and other development had been forced on Aborigines before 1976 was a major factor in decision-making. Also, the history of the company in question and its treatment of indigenous people elsewhere will be taken into consideration, as well as environmental degradation from mining and potential damage to sacred sites. Concern over the negative social impact of royalty distributions on Aboriginal community life is also a factor on peoples' minds. According to E. Wells, the decision to develop Aboriginal land is a momentous one for people whose very identity is embedded in the soil and water, what grows on and in it, and what is consumed by it's custodians. It is not a process that can be rushed.

While miners could have pointed to the Aboriginal Land Rights Act as development ten to twenty years ago, now no one would consider saying that in light of the number of agreements being signed between Aborigines and miners. Northern Territory Aborigines are now comfortable with the powers they have and confident that their will shall prevail in their dealings with non-Aborigines. They are more willing than ever to enter into negotiations with non-Aborigines. At the same time, mining companies are getting used to the idea of working with the Aboriginal Land Rights Act instead of fighting it. This will be mirrored throughout the country in the coming years as Australians learn to work with, rather than fight, the Native Title Act.

Conclusion

In an ideal world, support for development proposals on indigenous land would come from indigenous people themselves. They would initiate discussions with developers or embark on projects of their own choosing in their own time, whether it be mining, tourism, fishing, ranching activities, etc. They would have a comprehensive understanding of the potential impacts of development. As a group, they would delineate areas of land suitable for an agreed project from within their territories. With the support of other potentially affected indigenous peoples, they could embark on a project or negotiate directly with companies of their choice. They would enter into contracts with developers as equal partners, be employed in the ventures, and monitor progress through to the completion and rehabilitation of the land.

In the real world, indigenous people contemplating development are forced into a position where they must think about the contemporary nature of their own identity as Aborigines and their marginalization as a community in relation to non-Aborigines. It is often said by Aborigines that if a mining company demonstrates a willingness to get to know the people, comes to an understanding of the struggles they are engaged in, and are willing to share in the wealth that will be generated by doing business on Aboriginal land, then a "yes" answer will not be uncommon for access to Aboriginal land. Companies must consult and negotiate with indigenous people as opposed to running to the federal government in hopes that Aboriginal rights will be legislated away.

The Northern Territory experience demonstrated that developers have nothing to fear in the long-term by negotiating with Aboriginal people. Rather, there is a need to embrace the Native Title Act for what it is, the long overdue recognition that Aborigines and Islanders are the former owners of Australia, and that indigenous people continue to have traditional rights and interests in a large proportion of the continent and surrounding waters.

Bibliography

Altman, J.C. 1983. `Aborigines and Mining Royalties in the Northern Territory' Canberra: Austrailan Institute for Aboriginal and Torres Straight Islander Studies.

Harris, J. 1990. One Blood 200 Years of Aboriginal Encounter with Christianity: A story of Hope. Sutherland: Albatross.

McIntosh, 1. 1994. The Whale and the Cross. Conversations with David Burrumarra. Darwin: M.BE. Historical Society of the Northern Territory

Wells, E. 1982. Reward and Punishment in Arnhem Land 1962-1963. Canberra: Australian Institute for Aboriginal and Torres Straight Islander Studies.

Article copyright Cultural Survival, Inc.

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