The law of the land

It’s August 1966 and Vincent Lingiari has had enough. The Gurindji stockmen working on Lord Vesty’s Wave Hill cattle station to the north-west of Tennant Creek are getting paid a pittance. Lingiari leads his people in a walk-off and sets up camp on traditional land at nearby Wattie Creek. What begins as a ‘pay and conditions’ stoush quickly becomes a struggle for land rights. Eight years later, the fight has been won as Prime Minister Gough Whitlam arrives at Wave Hill to present Lingiari with a title deed. The ‘handful of sand’ photo, featuring these two great leaders, is to become an icon in the battle for indigenous land justice.

In the heady days of the early 1970s a new and exciting vision held sway. Amid the blossoming of Australian culture and identity there were calls for a better deal for Aboriginal Australia. But high school students still studied Blackstone’s dictum, and learnt that land ‘desert and uncultivated’ could be claimed simply by occupancy, because no legal code or land tenure existed. Any moral qualms about the dispossession of the Aboriginal people had to be subjugated. Our whole system of property law depended on it. So 20 years slipped by and indigenous Australia languished. However, the notion that our first peoples were entitled to something more had taken root and would continue to grow.

In the early hours of 22 December 1993 the Senate erupted in applause. Technically senators are not supposed to clap. Protocol demands that they should instead strike the table in front of them with the flat of their hand and chant ‘hear, hear’ in a robust and affirming manner. But this was special. After more than a year of tortuous negotiation with indigenous leaders, pastoralists, miners, state governments and myriad other interested parties, the Native Title Act would become law. Don Watson describes the scenes of jubilation in the galleries as ‘probably unprecedented in the parliament’s history’. People wept. Lowitja O’Donoghue said the Act was ‘the greatest proof yet of the probability of reconciliation’.

The preamble to the Act is almost poetic. It speaks in part of ‘ensuring that Aboriginal people receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire’.

The contribution Eddie Mabo made to this renewed momentum for land justice cannot be overstated. Edward ‘Koiki’ Mabo was born and raised on the island of Meriam Mer in the Torres Strait. Mabo tired of being paid £17 a month for working on the trochus luggers at a time when railway workers on the mainland were receiving £25 a fortnight. So he moved to Townsville and drove the eponymous native title claim that would overturn the doctrine of terra nullius. The High Court decision of June 1992 underscored the fundamental truth that this country was peopled by communities with complex systems of traditional law and custom thousands of years before the Europeans arrived. Tragically, Eddie Mabo died before the judgment was handed down.

Six months after the Mabo decision, Prime Minister Paul Keating flagged his intentions on a hot day in Sydney’s Redfern Park: ‘It was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion.’ So it was that Keating and his Aboriginal Affairs Minister, Rob Tickner, were midwives at the difficult birth of the Native Title Act 1993, which gave legislative expression to the Mabo decision.

Eddie Mabo’s mob on Meriam Mer were islanders who cultivated fruit trees, and designated borders between their properties. These habits were no doubt comfortingly familiar to the middle-class, middle-aged whitefellas on the High Court bench who decided that native title had survived.

By contrast, the Wik people of the Cape York Peninsula lived a traditional hunter-gatherer lifestyle. They had hunted, fished, practised ceremony and visited their sacred sites since time immemorial. In whitefella terms, their land was desperately marginal, sustaining cattle at the miserable rate of one beast for every 25 hectares. The Queensland government had leased the land to pastoralists since the mid-1940s without causing anyone undue concern.

In 1996 the High Court Wik decision allowed the possibility that hunter-gather tribes on the Australian mainland could enjoy native title in co-existence with pastoral leases. All hell broke loose as pastoralists and state premiers were consumed by fear and loathing.

Wild talk abounded as malice and mischief became the currency of the debate. Western Australian Premier Charles Court suggested that Mabo-type claims might be made on suburban backyards. National Party leader Tim Fischer leapt into the fray with both feet. Speaking at a party conference in Wagga Wagga, NSW, he suggested that the Keating government’s position on Mabo could lead to the ‘breaking up of Australia’.

He added that the dispossession of Aboriginal people had been inevitable and was not something to be ashamed of.

In this toxic climate, John Singleton created his ‘Twister’ advertisement for the National Farmers Federation. The little white kid and the little black kid played the party game until they become so entangled that they toppled over. Then the voice-over warned ‘The Wik decision—it’s not a game’, in a tone heavy with the certain knowledge of imminent and grave danger.

John Winston Howard is not a man given to visionary gestures of rapprochement with the first peoples of this country. In April 1997, the populist Prime Minister unveiled a Ten Point Plan to minimise the damage he feared Wik would cause. He also left open the possibility that the Racial Discrimination Act could be bent to protect property rights if that became necessary.

But amidst all the histrionics, one thing was never in doubt. If any inconsistency arose between the rights of native title holders and the rights of other licence holders, then the rights of the latter would always prevail. This principle is expressly stated in the legislation.

In December 1998, Mr Justice Olney in the Federal Court determined that the Yorta Yorta native title claim had been ‘washed away by the tide of history’. The judge placed great significance on the accounts of squatter Edward Curr, which were written 40 years after events took place, preferring them to the oral evidence offered by contemporary Yorta Yorta people. A subsequent appeal to the High Court was unsuccessful, leaving the Yorta Yorta nation devastated.

In December 2005, Justice Ron Merkel of the Federal Court travelled to Horseshoe Bend in Victoria’s Wimmera region to formalise the first determination that native title has survived in southern Australia. Most Wotjobaluk and Wergaia people will appreciate the formal recognition of traditional ownership afforded by the consent determination, and the three small but culturally significant properties transferred in freehold by the Victorian government. But in practical terms they’ve been given precious little. Ten years after the claim was first lodged, native title was determined to exist on a narrow strip of crown land either side of the Wimmera River. In making the agreement, the claimants forfeit forever the right to make any native title claim on the remaining 98 per cent of the initial claim area.

Even on the precious two per cent, the Wotjobaluk and Wergaia will not own the land, nor have any exclusive rights over it. However, the upside to this unspectacular agreement is that the wider Victorian community may well see that they have nothing to fear from native title. With the ‘take your backyard away’ bogeyman thus vanquished, the preconditions are created for the speedy and generous resolution of future claims.

Uncle Jack Kennedy, a senior Wotjobaluk elder, deposited an affidavit with the court. He said, ‘I’m looking forward to getting some of my country back before I die so I can die knowing I have done what the elders expected of me. If the Wotjobaluk continue to follow (the creator spirit) Bunjil, then things will go on as the old people would want.’ In a tragic echo of Mabo, Kennedy died only months before the consent determination was finalised. His profound contribution was acknowledged by a chair left symbolically empty at the ‘on country’ court hearing.

In making his orders, Justice Merkel said that, in this case, the ‘tide of history’ had not washed away any real acknowledgment of traditional laws or any real observance of traditional customs by the applicants. He added that ‘the present case is a living example of the principle now recognised in native title jurisprudence that traditional laws and customs are not fixed and unchanging. Rather, they evolve over time in response to new or changing social and economic exigencies …’

It would seem that in matters native title, the only certainty is continuing uncertainty.

Justice Callinan observed in the High Court’s 2002 Mirriuwung-Gajerrong decision that native title is so ‘complicated, shifting and abstruse that it continues to require the intervention of this court to resolve even the most basic issues’. In the same judgment, Justice McHugh said that ‘the deck is stacked against native title holders, whose fragile rights must give way to the superior rights of the landholder whenever the two classes of rights conflict’.

Meanwhile the battle for land justice continues. 

Graham Ring is a Melbourne-based writer who specialises in issues of indigenous justice.



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