|Posted on September 10, 2012 at 10:30 PM|
In 1992, the High Court of Australia rejected the notion of terra nullius, and legally recognised the occupation of Indigenous People’s before and during the process of British colonisation. It was the first time, in the eyes of the law, that Aboriginal people had been acknowledged as the traditional custodians of the land. The ruling introduced the concept of native title, which is the recognition that “some Indigenous people have rights and interests to their land that come from their traditional laws and customs” (Tehan).
The Mabo case was a landmark decision for the High Court. It was regarded as a victory for Indigenous people across the country, and a progressive step towards reconciliation between black and white Australia. However, the ruling also received backlash from politically conservative groups. The equally panicky and reactionary media coverage of the time tended to foster division, rather than unity. On the flip side, Aboriginal activists criticised the phrasing of the law as being too vague, and more a symbolic victory than a practical one. While some Indigenous groups have been granted native title, dozens have been denied on the basis that their cultural link to the land has been broken. And even to this day, hundreds more are still waiting to plead their case.
In 1996, the High Court delivered a second landmark decision, namely, that pastoral leases on land, did not necessarily extinguish native title. In other words, Indigenous people may have access to leased rural property, if they could establish an ancestral and customary connection. This was called the Wik decision, and if Mabo did not inflame conservative Australia, then this ruling certainly did. While furthering the rights of Indigenous custodians, the media backlash widened the gap between Aborigines and white land-owners (Stevenson, 1996).
Terra nullius, the notion that Australia was an empty land belonging to no one, was the primary basis and rationale for British colonisation. In 1992, the High Court found that Australia was indeed occupied by an Indigenous populace at the time of settlement, with each group of people owning a different portion of the land, and maintaining cultural and spiritual connections with that land. With terra nullius rejected, the legitimacy of colonisation was challenged (Kildea). The High Court also acknowledged Britain did not attain absolute sovereignty over Australia the moment that it set foot on the country, and that Indigenous people’s continued to own parts of the land well into the process of European colonisation.
In the case of Mabo v Queensland (No 2) the High Court legally recognised the Meriam People of Murray Island were the native title holders over their traditional lands. The court ruled that native title would be granted to Indigenous inhabitants of a territory where traditional laws were acknowledged and customs observed. However, the court also stated that “when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared”. This meant that in large areas of the country’s interior, where colonisation had been less oppressive, native titles could be recognised (Tehan).
Native title has benefitted many Indigenous communities. Since 1992, 126 native title determinations have been put to the courts, with over 90 ruling that native title did exist. Communities in Pilbara, the Kimberly’s, Torres Strait, the Northern Territory, and south-west Victoria have all been recognised as original custodians, with most, if not all of their traditional country conceded. Unfortunately, hundreds more have yet to go to trial, with many claimants being forced to wait years to pursue their titles; by which time elder members of the community may have passed on. In such cases, Indigenous land use agreements can be entered into, which serve to circumvent long and costly trials, and foster more cordial relationships between Indigenous and non-Indigenous occupants (Tehan).
In some cases, Indigenous people have been granted native title over areas rich in minerals, and have granted mining and exploration companies access to the land. In return, the companies have given the community financial numerations and employment. Such cases emphasise Indigenous self-determination, where communities have maintained the cultural dignity of their homeland, as well as created economic stability and prosperity for themselves. It is an example of Indigenous tradition and industrialisation working in mutual esteem (Nettheim). Of course, not every community would want to exploit their homeland in such a fashion, but the important thing is, it is their decision. In other cases, native title owners have worked with state governments to create national parks. This also generates employment opportunities for Aborigines, as well as allowing members of white Australia to enter their country in a respectful and informed manner.
Unfortunately, not all Indigenous communities have directly benefitted from native title law. This is often due to their proximity to white settlement, as well as the duration and financial burden of such complex legal processes. One example of a failed native title claim is the case of Yorta Yorta v Victoria. In that instance, Justice Olney deemed native title extinguished, ruling that the “tide of history” had “washed away” any real acknowledgement of traditional laws and any real observance of traditional customs by the applicants (Jagger).
This judgement generated intense anger, disappointment and disillusionment on the part of the Yorta Yorta people, who continue to maintain that they are the rightful owners and occupants of their land. Much of the uproar stems from the court’s interpretation of the word “traditional”. While the Yorta Yorta have passed down stories and rituals from generation to generation, the court deemed that these customs were not present in the culture, prior to British settlement, thus excluding them from being “traditional”. One of the problems Yorta Yorta v Victoria unearths about native title law, was that many Indigenous peoples were dislocated from their lands by British colonists, thus dissolving the foundation of native title, in the eyes of the High Court.
In 1996, the High Court of Australia found that statutory pastoral leases did not bestow exclusive possession rights on the leaseholder. As a result, native title rights could co-exist with rural land leasers, depending on the terms and nature of the particular pastoral contract. The decision “provoked significant debate in Australian politics”, and led to “intense discussions on the validity of land holdings in Australia” (Due). Many conservative politicians accused the High Court of being out of touch with history, and with the “Australian way of life”. The High Court was also criticised for introducing uncertainty into the Australian judiciary, and panic into the populace, though in truth, most of this uproar was fed by sensationalist journalism.
After the Wik decision, many Australian’s, particularly graziers, feared that the High Court had “pushed the pendulum back too far in the Aboriginal direction”, granting them greater rights than ordinary Australians (Kildea). Coalition Prime Minister, John Howard, held up a map of Australia on public television, and declared that up to 16% of the country was being threatened with annexation. This inflamed public perceptions of the Wik decision and lead to intense criticism of the High Court. Sensationalist media coverage even suggested that native title claimants were trying to steal people’s backyards (Due). Legal Commentator Philip Hunter criticised the backlash as being “totally unjustified”, arguing that the High Court clearly ruled that in cases where native title and pastoral leases clashed, native title would be extinguished. Prime Minister Howard responded to the ruling with a ten-point plan that reaffirmed the rights of pastoralists. The resulting legislation produced the longest debate in the history of the Senate (Kildea). Unfortunately, the uninformed coverage tended to inflame public opinion of Indigenous activism, deepening the cultural void between Aboriginal and non-Aboriginal Australians. Hunter also argued that the issue was exploited by conservative politicians, in an effort to build support for their own base (Due).
Aboriginal community spokesman, Gary Foley, has called the Mabo decision “the greatest single act of dispossession since 1788” and regards the Native Title Act as a fraud that perpetuates European Colonialism, and reverses the efforts of Indigenous activists. Foley argues that by rejected terra nullius, the High Court has completely illegitimated the process of British colonisation (which in 1788 was legally justified if the land was empty), as well as its own judicial authority (which stems from British common law). Despite this, however, the fruits of British invasion and dispossession remain firmly in place, and their untouchability has been fortified by law. Foley further argues that granted native title is purely symbolic, and completely separate from land rights, which is what the Indigenous civil rights movement had been campaigning for, the past few decades. In a sense, Foley argues that native title offers only a tiny [and symbolic] olive branch to Indigenous Australia, while completely legitimising the dispossession of land now under white control. Had the High Court’s simply recognised that the lands were taken through right of conquest, then the Australian government would be forced to negotiate for all lands alienated, but by introducing the concept of native title, it is forcing the dispossessed Indigenous parties into proving some High Court-defined version of “cultural connection”.
Another point of criticism from Aboriginal activists is that native title tends to divide Indigenous people, rather than unite them. The land rights movement of the 60s and 70s was about getting compensation for all Aboriginal people for the dispossession of land. Native title, however, divides Aborigines into their specific people or community, and asks them to provide proof of an “ongoing connection” with their specific land (Due). With land rights everyone had a stake, but native title serves to fragment the movement, even creating resentment between communities who are granted native title and those who aren’t (Foley). Moreover, the act of establishing an “unbroken, customary connection to land in a hostile court-room” is a long, gruelling process. One is forced to put their identity on trial, and the identity of their people. This can cause bitter divisions within communities. As Aboriginal leader Muriel Bamblett recounts, “Siblings, cousins, Uncles, Aunties—families began to be driven apart from each other. In some cases they would not even talk to each other” (Stevenson).
The Native Title decision of 1992 is a significant moment in Indigenous and non-Indigenous relations. While it has certainly benefitted many communities across Australia, it has contributed to a fragmenting of the Aboriginal rights movement. The backlash against the 1996 Wik decision also served to antagonise the movement, contributing to further cultural division. That said, however, the Indigenous communities that have successfully achieved native title are given a real and lasting opportunity to reconnect to the culture and way of life that was taken from them, over 200 years ago, and that is a small victory for them.