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Aboriginality And Land

Welcome Land and Water Rights Government Policies and Legislation Non-Aboriginal Responses Bibliography	The Land and Water Rights movement and recognition of native title   Key concepts History of the Land Rights movement and the recognition of Native Title Land and water rights The impact of key High Court decisions and legislation on land, water and property rights Aboriginal responses to land and water rights, native title & High Court decisions Sample questions Marking criteria of sample questions> OUTCOMES H2.1 analyses the importance of land as an aspect of contemporary issues impacting 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 Key concepts Land and water rights The ongoing struggle of Aboriginal people to be acknowledged as prior owners of the land and for recognition of all rights and obligations that flow from this association. Customary law These laws were handed down from the Dreaming to each Aboriginal group and remained unchanged for generations.  Aboriginal groups enforced these laws and customs within their tribal boundaries.  Each group could have different laws and customs from other groups depending on geographical boundaries. Spirituality Aboriginal people were very spiritual in the sense that they had an affiliation with the Land.  They believed the Land was the giver of life and when they died their spirit returned to the Land.  Aboriginal people also believed that Elders taught Spirituality through Dreaming stories. Terra nullius This is a concept of international law meaning territory belonging to no-one or over which no-one claims ownership. When Captain James Cook claimed the Eastern coast of Australia for the British Crown he justified the move with the concept of Terra Nullius. He believed, "We are to consider that we see this country in the pure state of Nature, the Industry of Man has had nothing to do with any part of it. They seem to have no fixed habitation but move about from place to place like wild Beasts in search of food." (Yarwood & Knowling 1991:31). The British law system recognised ownership of land based on specific principles so that ownership was shown by the fencing of land to mark boundaries, the building of permanent structures and the farming of the land. Legislation These are laws that are made by the State, Commonwealth or Territories on factors or issues affecting the Aboriginal people living in these areas. Native title Form of land title that recognises Aboriginal people as the rightful owners of the land they occupied prior to 1788. Sovereignty This is the recognition of legal ownership of land.  This is at the heart of the Land Rights struggle as Aboriginal peoples cared for themselves and country for thousands of years.  With the introduction of British common law in 1788 Aboriginal peoples lost the right to care for their own country and govern their own affairs. History of the Land Rights movement and the recognition of Native Title Aboriginality and land In the Preliminary course you covered the topic of Aboriginality and the Land prior to the 1960s. The history of the Land Rights movement begins with the invasion and colonisation of Australia in 1788 by the British.  They imposed British common law on the native inhabitants and took away their sovereignty. This common law superseded customary law, as no recognition was given to the rights of the native population due to the concept of terra nullius. British common law dictated the land was considered territory belonging to no-one on three key issues: there were no fences or markers to show boundaries; there was no industry such as farming of the land; and no permanent structures or buildings had been erected.  For Aboriginal people the dispossession and dislocation from their land had devastating consequences because the Land was central to their entire existence. Throughout the Preliminary course you have looked at the impact of British colonisation on land and water rights through both local and national case studies up to the 1960s but this issue continues to the present day.  You really cannot begin a study of this topic post-1960s without looking closely at various protests regarding land rights.  (See section on Aboriginal Responses to Land and Water rights etc.)  To bring the information up to date with the recognition of Native Title you need to review the 1992 Mabo Decision by the High Court of Australia as well as the 1993 Native Title Act. Further information should also be sought on the changes to the Native Title Act 1998. Text resources Bourke, Bourke & Edwards, Aboriginal Australia. University of Queensland Press, 1994. Craven, R. (ed), Teaching Aboriginal Studies. Allen & Unwin, St Leonards, 1999. Lippmann, L. Generations of resistance: Mabo & justice.Longman Cheshire, 1991.  McConnochie, Hollingsworth & Pettman, Race and racism in Australia. Social Science Press, Wentworth Falls, NSW, 1989.  Pope, A. Understanding land rights 1788-1994. Relevant Resources, SA, 1993.  Video resources Lousy little sixpence. Ronin Films 1982. Land and water rights The historic decision in 1992 by the High Court, commonly referred to as the Mabo Case, led the way to the formation of the Native Title legislation by the Commonwealth Government.  The Native Title Act 1993 came into effect on 1st January 1994.  These events are reviewed in the following sections. Resources are listed for more information. Prior to this Federal legislation, many Acts were passed by individual states regarding Land and Water Rights for Aboriginal people.  The first step was taken by South Australia, which established the SA Aboriginal Lands Trust in 1966.  This was established by an Act of the SA Parliament, with the Lands Trust being given a ninety-nine year lease of many former reserves. Membership is subject to proof of Aboriginality. The next step occurred in Victoria in 1970, when the Parliament passed an Aboriginal Land Act which granted (to an Aboriginal community) freehold title over the Lake Tyers (Gippsland) and Framlingham (Western District) reserves.  Membership is subject to Aboriginality. Western Australia followed in 1972 with their own Aboriginal Lands Trust, once again giving Aboriginal people control of previously held reserve lands.  The same year the Aboriginal Tent Embassy was erected on the lawns of Parliament House and brought about worldwide media coverage of the Land Rights issues.  In 1972 the new Commonwealth Labor Government appointed Mr Justice Woodward to investigate how land rights could be granted in the Northern Territory.  The Aboriginal Land Rights Act was passed in December 1976. The New South Wales Aboriginal Land Rights Act was passed in 1983, creating a three-tiered structure of Local, Regional and State Aboriginal Land Councils.  Land claims can be made for vacant crown land, or Councils can purchase land that is for sale.  The NSW State Government also supported this venture by giving 7.5% of land tax until 1998 to be used for investments, to purchase land, to establish businesses, to build homes for Aboriginal people and administer Land Councils. Most information for this section will need to be obtained through Aboriginal Land Councils either Local, State or National. Text resources NSW Aboriginal Land Council, Our land our people. Bloxham & Chambers, Rhodes, 1991. Horton, D. (ed) The Encyclopedia of Aboriginal Australia. Aboriginal Studies Press, Canberra, 1994.  Also available on CD-ROM. Video resources Always was, always will be. Australian Film Institute, 1989. First Australians - couldnít be fairer. Film Australia, 1984. Our land is our life. Northern Land Council, 1986. Pilger J. The secret country. Ronin Films, 1985.  The impact of Key High Court decisions and legislation on land, water and property rights The Native Title legislation may or may not have direct application to each local Aboriginal community. The decision of the High Court of Australia to quash claims of terra nullius has become enshrined in Australian History.  This doctrine, which effectively dispossessed Aboriginal and Torres Strait Islander people, was described by two of the seven presiding High Court judges as "the darkest hour in the history of this nation".  This has had significant impact on legislating for land, water and property rights over the past decade. The significance of this development has been acknowledged by local governments, the media, Aboriginal groups and by industry groups with vested interests in land such as the pastoral and mining industries.  This may or may not apply to your local community, since it is dependent on Aboriginal groups maintaining traditional, uninterrupted links with their land. Please refer to your Local Council or Aboriginal Lands Council office for the most up-to-date information concerning Land Rights claims lodged or won in your particular area. Text resources ATSIC Information kit on Native Title. Commonwealth of Australia, January 1994. Flood S. Mabo: a symbol of sharing. Fink Consultancy, Glebe, 1993.  Healy K. Indigenous peoples. Issues for the nineties Volume 10, Spinney Press, 1993. Healy K. Native Title. Issues for the nineties, Spinney Press, 1993.  National Indigenous Working Group on Native Title (Australia) Coexistence: negotiation and certainty: indigenous position in response to the Wik decision and the Government's proposed amendments to the Native Title Act, 1993. National Indigenous Working Group on Native Title, Canberra, 1997. Video resources An act of justice [videorecording]: the Mabo judgement and the Native Title Act / ATSIC. Oziris, Australia 1994. Council for Aboriginal Reconciliation Walking together a new focus. Includes: the Redfern Statement and the Mabo Decision. Oziris, Manuka ACT, 1993. Mabo life of an island man. Film Australia, Lindfield 1997.  Internet links Human Rights and Equal Opportunity Commission Council for Aboriginal Reconciliation NSW Farmers' Association Aboriginal responses to land & water rights, native & High Court Decisions 1963-1967 Bark Petition by the Yirrkala situated on the Gove Peninsula in Arnhem Land This petition was sent to the Commonwealth House of Representatives written in their own language.  It was to do with the decision to take land from the Arnhem Land Reserve for bauxite mining.  While this did not result in full land rights, the Yirrkala people were compensated in part by way of land grants. 1966-1975 The Gurindji people living on the Wave Hill cattle station in the Northern Territory went on strike for award wages and better living conditions At the heart of this struggle was the issue of land rights and the return of their traditional homeland.  This case saw Gough Whitlam hand over the lease of traditional land to the Gurindji people. 1965 Freedom rides A group of University students, including Charles Perkins,  travelled throughout the country area highlighting racism and discrimination.  Various incidents were publicised in the media gaining national support for Aboriginal people. 1967 Referendum Prior to 1967 Aboriginal people were subject to State government  decisions about their welfare and were not counted in the census as Australian citizens.  The referendum resulted in just over 90% of Australians in favour of the Commonwealth government assuming control of Aboriginal Affairs and including them in the census. 1972 Tent Embassy Aboriginal people believed the referendum of 1967 would see an  improvement in their lives.  This was not to be the case.  In 1972 political activists set up tents on the lawns of Parliament House and called it the Tent Embassy.  The black, red and yellow flag, designed by Harold Thomas of the Arrente tribe in SA, was flown as the symbol of the Aboriginal people.  This action took the plight of the Aboriginal people to an international audience and laid the foundations of the Labor Partyís win later that year with their Itís Time slogan. 1982-1992 Mabo Decision 1992 Mabo Decision by the High Court of Australia. This historic decision overthrew the concept of terra nullius in Australia.  Although it was a ten-year struggle, which Eddie Koiki Mabo did not live to see completed, the Meriam people proved ownership of the Murray Islands on the principles of British common law.  This in turn led to the Native Title Act 1993 that allows other Aboriginal groups to put in similar land claims.    1993-1996 Wik 1996 Wik decision by the High Court of Australia.This was another landmark in the history of Aboriginal land rights.  After the Mabo case it was believed that pastoral leases extinguished native title.  The Wik decision highlighted that it was possible for native title and some types of pastoral leases to co-exist.  Each state however and each case would have to be reviewed on its own merits.  The Wik decision does not mean all other similar claims will be successful.   Text resources Berwick, Burgess & Myers Protests - Aboriginal Issues Series. Redfern, 1999 Sample questions SECTION II (30 marks) PART A: ABORIGINALITY AND THE LAND Question 8. Referring to the Aboriginal people,    the very notion of property, as applicable to territorial possession, did not exist among them.  They had no civil polity (government), no regular organised frame of society, on the regulations of which the distinction of landed property depends. Each tribe wandered about wheresoever inclination prompted without ever supposing that any one place belonged to it more than another. From an article in the Sydney Gazette 1824.  (a) Using the source and your own knowledge answer the following questions: (i) Explain the legal doctrine of terra nullius as enforced in 1788  (5 marks) (ii) Explain how the Mabo case dispelled the myth of terra nullius (5 marks) (b) Evaluate the impact of the High Court decision in 1992 (the Mabo Case) on the future of Land Rights Claims in Australia.  Illustrate your answer by using your Local Aboriginal Community Case Study. (20 marks) Marking criteria of sample questions Question (a) (i) Explains the legal doctrine of Terra Nullius in relation to British common law.  They must refer to the three principles of land ownership. (4-5 marks) Describes the concept of land being void of any signs of ownership by the indigenous people. (2-3 marks) States the basic concept that it is territory belonging to no one. (1 mark)   Question (a) (ii) Explains that the Mabo Case proved that the Meriam people did have prior ownership of the Murray Islands based on the principles of common law. (4-5 marks) Identifies that native title was not extinguished on the Murray Islands. (2-3 marks) Paraphrases the quote in an attempt to grasp the concept of the Mabo decision. (1 mark)   Question (b) Extensive knowledge and understanding of the concepts of the Mabo decision as reflected in the Native Title legislation. Compares and evaluates the impact using relevant and specific examples from the Local Aboriginal Community Case Study. Develops a sustained and balanced argument using a local perspective.  (17-20 marks)   Detailed knowledge of the concepts of the Mabo decision and the link to the Native Title legislation. Evaluates the impact using relevant examples from the Local Aboriginal Community Case Study. Develops a balanced argument using a local perspective.  (13-16 marks)   Shows sound knowledge of the Mabo case and the Native Title legislation. Compares the Land Rights experiences using some examples from the Local Aboriginal Community Case Study. Develops an argument with a local perspective.  (9-12 marks)   Indicates some knowledge of Mabo not necessarily linked to the Native Title legislation. Recounts the experiences of Aboriginal communities in general. Recounts information from a variety of sources without referring to the local community.  (5-8 marks)   Attempts to recall elementary knowledge of the Mabo case or the Native Title legislation. Expresses an opinion with minimal supporting evidence. Expresses a personal point of view on the subject.  (1-4 marks)