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Aboriginal Studies

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Aboriginality And Land

Welcome Land and Water Rights Government Policies and Legislation Non-Aboriginal Responses Bibliography	Non-Aboriginal responses to land and water rights and native title Responses to High Court Mabo decision The person in the street Farmers and pastoralists Mining industry Commercial fishing industry Tour operators Australia after the High Court Mabo decision Sample questions and marking criteria OUTCOMES H2.1 analyses the importance of land as an aspect of contemporary issues compacting on Aboriginal peoples H2.3 discusses and analyses consequences of colonisation on contempoary Aboriginal cultural, political, social and economic life H3.2 evaluates the impact of key government policies legislation and judicial processes on the socioeconomic status of Aboriginal peoples and communities Responses to High Court Mabo decision You have learnt in a previous section about the High Court's decision in the Mabo case and how for the first time in Australia, the laws and customs of Indigenous Australians, and the fact that they are the traditional owners of the land, was acknowledged and recognised as part of the common law in Australia. The term used to describe the common law rights of Indigenous people is Native Title. The Native Title Act came into effect in 1994 to give legal protection to Native Title. This recognition gave Indigenous Australians, for the first time, a legal basis for land claims. For Aboriginal people, it was a significant decision. For the first time in over two hundred years Aboriginal people had a small amount of power given back to them. Unfortunately, when the High Court handed down the Mabo decision, many things about it were unclear. This made it difficult for both Aboriginal and non-Aboriginal people to understand what their position was in regards to land rights. Many things were somewhat ambiguous, one of which was how native title would effect non-Aboriginal people, especially those with a vested interest in land that they thought they may be at risk of losing. The following are some of the responses of various groups within the community: The person in the street "Aborigines taking over my back yard!" "Aborigines claiming the suburban home that I have worked all my life to pay for!" "Lazy Aborigines getting something for nothing, as usual!" These were some of the negative responses of non-Aboriginal people. Do you remember your parents perhaps expressing fears about what the decision could mean to them? It was no wonder that many ordinary Australians felt fearful and insecure. Newspaper and television reports told how Aboriginal people would be able to claim large tracts of land, including whole townships, how the Mabo decision would take Australia back to "a stone-age culture". The media and certain politicians took advantage of the public's lack of knowledge of the true facts, thus encouraging people to express unfounded fears about losing their homes, without once reassuring them that this could not possibly happen. Farmers and pastoralists At this point, let us step back in time to 1813. That was the year that the first European men crossed the Blue Mountains and the whole of New South Wales, and indeed Australia, was laid out in front of pioneers who dreamed of making their fortune through farming and running livestock. Many travelled until they found land that they considered suitable for their needs and simply squatted. That is, they erected a dwelling and claimed the land as their own. The government realised that squatting was becoming a major problem because the land being taken (under British law) belonged to the government and it was quickly losing a great deal of valuable land. It is interesting to note that it was during this period that Australia was officially deemed terra nullius. To legally claim that the land belonged to the British government, they had to disclaim, in law, Aboriginal rights to it. Thus, the doctrine of terra nullius was applied, using the accounts of explorers such as Captain Cook as evidence to support the claim. Thus, Britain legally took possession of Australia and the concept of the pastoral lease came into being. Under this system, a person wishing to carry out agricultural practices could lease the land from the government but could no longer simply claim ownership of the land by squatting on it. This system ensured that the government retained ownership of the land and pioneers were still able to carry out agricultural pursuits. The historian Henry Reynolds has noted that in 1850, a clause was included in pastoral lease agreements which stated that part of the agreement for use of government land was that Aboriginal people were to be able to remain on their traditional lands at the same time as pastoralists could run sheep and cattle. That is, pastoralists and Aboriginal people had joint usage of the land. In reality, of cause, many pastoralists ignored the clause and drove Aboriginal people away. Therefore, for the past 160 years or more in some cases, pastoralists have had uninterrupted use of government land (40% of the continent!) and in some cases have come to regard it as their own property. The Mabo decision, from which Aboriginal people were granted Native Title, made many pastoralists feel insecure. They were reassured by many, including the then Prime Minister Paul Keating, that native title was extinguished on pastoral leases. However, the Wik people of Northern Queensland did not accept this. They have had a continual relationship with their traditional lands even though several pastoral leases exist on their traditional land. The Wik people went to the High Court to prove that pastoral leases are indeed Crown (government) land and therefore Native Title should exist on these leases. They wanted the 1850 co-existence clause to be enforced. The Wik decision was handed down on December 23rd 1996, ruling that pastoral leases issued by the Queensland Government did not necessarily extinguish native title. Prime Minister John Howard, during 1997, tried to modify the High Court's ruling through his Ten Point Plan to help eliviate the concerns of non-Aboriginal people, especially farmers. There is a difference of opinion over the impact of the Wik decision amongst farmers. Many farmers agree with Donald McGaughie, the president of the National Farmers Federation who believes that history has been misinterpreted and that the government never intended co-existence between Aboriginal and pastoralists. He wants the Wik decision overturned through legislation because he believes that co-existence with Aboriginal people will not work. He believes the present ruling is unclear and that problems will arise when consultation has to be sought with Native Title holders on such issues such as the buliding of dams, fencing and farm tourism on pastoral leases. John Bock from the Queensland Cattlemen's Union agrees with Mr McGauchie on the issue of making changes. He is not concerned about Aboriginal people coming and doing a bit of fishing or visiting sites of significance but sees that there may be problems beyond such pursuits. He believes that pastoralists need to diversify to make farms viable and having to negotiate with Native Title holders may prove a problem. Another problem is that not all pastoral leases were issued under the same conditions. For example, New South Wales Western Land Leases were issued in perpetuity (forever) unlike the Queensland leases and up until 1985, the leaseholders were allowed to buy the land outright. The NSW farmers are very concerned that the Wik decision may change their position, even though the lease conditions were different. Rick Farley, a past president of the National Farmersí Federation believes that farmers are over reacting to the whole situation and that their fears are not valid. He believes that people such as Mr McGauchie are looking at the worst case scenario. He believes that farmers must learn to negotiate with traditional owners. Recently in the Cape York region, members of the Cattlemensí Union, conservationists and Native Title holders met to try to come to agreement on a way of all working together. The result was that pastoralists recognized Aboriginal people as the traditional owners and allowed them access to the land for traditional purposes, whilst the Aboriginal people agreed on an upgrade of lease agreements to allow them to diversify. Rick Farley believes that this type of negotiation is the answer. Mining industry Many mining companies have realized that they must negotiate with Aboriginal people so that both parties have a satisfactory outcome. Paul Wand, Vice President, Aboriginal Relations, for Rio Tinto explains that some mining companies are using strategies to build an atmosphere of trust in Aboriginal communities. Such initiatives as the Aboriginal Training and Liason Group in Karratha help forge links between mining companies and Aboriginal people. Several large mining companies made major contributions to the Bringing Them Home conference as a sign of their desire to reconcile with Aboriginal people (although many were cynical about the motives of mining companies). Large companies, overall have come to the realisation that they need to consider Aboriginal people and are trying to come up with ways of satisfying both parties. However, the Wik decision has made it difficult for some people with small mining leases. Rob Murdock, from Union Mining describes the situation as the most sinister, the darkest period of the Queensland Mining industry. A number of small mining operations have ceased production until the issue of native title is resolved and they naturally feel confused and uncertain about their position. Commercial fishing industry At present there are around 140 claims over the sea from native title holders. This is a surprise and of concern to commercial fishermen because the Wik and Mabo cases made no mention of the sea and did not provide a guide to the common law regarding Indigenous rights to the seas. Those people that drafted the Native Title Act 1993 did not perceive the fishing industry to be affected by native title because the industry does not have freehold or leasehold status over the areas in which it operates. Most of the claims seek exclusive possession and exclusive control over marine resources with the aim of overriding the commercial rights and activities of fishermen. The fishing industry is anxious for a Federal Court case over fishing rights around Crocker Island to conclude so that they can ascertain where they stand as regards native title. The fishing industry hopes that the future for the issue of native title does not involve litigation (law suits) and they want a shift in the thinking of native title holders who want exclusive possession. The industry believes that the approach to the use of the sea should be one of co-existence and mutual recognition of the rights to marine resources - never extinguishment of native title and never exclusive possession and that there is plenty of room for multiple use of sea resources: commercial, Indigenous and recreational. Tour operators The tourist industry recognises that the premier attraction of many visitors to Australia is the ancient and rich Aboriginal and Torres Strait Island cultures. They realise that a major concern of Indigenous Australians is that respect of their rights to the land is recognised and that Indigenous people want greater involvement in all levels of the tourism industry. The Australian tourism industry's position on native title is based on the desire for reconciliation and certainty. The industry has concerns about securing grants, permits and authorities on which tourism operations are based and want a framework for future titles and permits so that there is no confusion for either party. The industry has noted several shortcomings in the present native title framework, where tours onto traditional lands involve negotiation between tour operators, native title holders and government bodies. There are no set rules for the negotiations and they can break down at any point, leaving tour operators unable to carry out their businesses. The industry wants the issues for tourism and native title to be resolved promptly so that the industry does not suffer too much but it wants the resolution to be sought in a non-confrontational way. Australia after the High Court Mabo decision There is no doubt that recent High Court decisions have had a huge impact on the lives of many non-Aboriginal people. At present, because the Mabo and Wik cases are such recent events, the country is in a period where many issues still need to be sorted out. For over two hundred years, non-Indigenous Australians have benefited from the rich resources of this country. Naturally, any changes to that position causes uncertainty, insecurity and in somes cases, hostility.  Non- Aboriginal groups can no longer ignore Aboriginal rights to their land and have three possible options in the way they can deal with those rights: litigation, legislation or negotiation. Over time, as problems are gradually solved, it is hoped that attitudes will change and reconciliation will take place so that Aboriginal and non-Aboriginal Australians will benefit. Sample questions SECTION II (30 marks) PART A: ABORIGINALITY AND THE LAND Question 8. A long period of exclusive occupancy in combination with token rents has cemented in the minds of many a perception of ownership that is not legally justified. Bludgers in Grass Castles (a) (i) Explain what is meant by "a long period of exclusive occupancy in combination with token rents" and who the quote is referring to. (5 marks) (ii) With reference to one High Court decision, explain why "a perception of ownership" may no longer be "legally justified". (5marks) (b) Explain the various responses that non-Aboriginal people have had to the issue of Native Title. Evaluate the advantages and disadvantages of each response. In your answer, refer to your Local Aboriginal Community Case Study. (20 marks) Marking criteria of sample questions Question (a) (i) Explains the meaning of exclusive occupancy and token rent. Names one or more non-Aboriginal group that the quote may refer to. (4-5 marks) Refers to non-Aboriginal group and generally defines one term. (2-3 marks) Refers to a non-Aboriginal group or defines one term. (1 mark) Question (a) (ii) Refers to one High Court decision. Clearly explains the legal implications of that decision on one non-Aboriginal group. (4-5 marks) Refers to High Court decision and generally to legal implications. (2-3 marks) Refers to one High Court decision. (1 mark) Question (b) Comprehensive understanding of the concept of native title. Comprehensive understanding of the impact of native title on various non-Aboriginal groups and the link between the impact and their responses. Comprehensively explains the avenues available to non-Aboriginal to respond to the issue of Native Title. Depth of analysis on the advantages and disadvantages of each response. Reference to their local area in terms of the impact of native title and non-Aboriginal responses. (18-20 marks) Shows a clear understanding of native title and how it impacts on several non-Aboriginal groups. Shows clear understanding on a limited number of responses of non-Aboriginal groups. Some analysis of the advantages and disadvantages of each response with reference to their local area. (13-17 marks) Shows a general understanding of the concept of native title and its impact on more than one non-Aboriginal group. Shows a general understanding of the responses of more than one non-Aboriginal group May only mention advantages or disadvantages (not necessarily both) Limited analysis of advantages and disadvantages. Reference to local area. (9-12 marks) Shows a general understanding of the concept of native title. May mention one example of a non-Aboriginal response. No mention of advantages and disadvantages Reference to local area. (5-8 marks) Shows some knowledge, in very general terms, of non-Aboriginal responses to native title. Identifies their community. (1-4 marks)