Somebody wrote that the victors write history.

Like most Australians of my age group, I had been taught very little about Aboriginal people in my Government primary school in Naracoorte in South Australia. I understood that Europeans had settled an almost empty land and the few Aboriginal people that we had encountered were nomads who wandered at will, were found around the odd waterhole, were happy to see us and grateful to be saved from measles and taught Christianity. I do not think I actually remembered to ask Miss Simons, my beautiful primary school teacher, where they got the measles from.

The subtle implication of “nomadic wanderings” (i.e. that Aboriginal people had no connection with the land, and thus European settlement did not involve deprivation of any sort) was simply lost on me. I really did not understand, nor indeed at that age had even heard of, the doctrine of “terra nullius”.

At University I had of course heard about land rights and Native Title, but simply could not accept the legitimacy of the concept. I joined in the laughter around the bar when someone said that their sacred place was the Royal Brisbane Hospital where they were born.

It was not until I read, by accident, Professor Theodore Strehlow’s book in the library at Alice Springs entitled “Songs of the Central Aranda” and subsequently his amazing autobiographical book “Journey to Horseshoe Bend” that I began to understand. In the book, he gives a factual account of the last journey, in October 1922, of his father, Pastor Strehlow. After 28 years in charge of the Lutheran Mission at Hermannsburg, west of Alice Springs, his father became desperately ill and set out in a donkey cart with his wife and son and some Aboriginal friends down the sandy bed of the three million year old Finke River in a desperate attempt to reach Horseshoe Bend to the south, thence Finke and finally the Oodnadatta rail head in South Australia.

Parishioners from the Lutheran Church in the Barossa Valley, who had sponsored the mission, had arranged for a motor car to be taken to the rail head at Oodnadatta in northern South Australia. The car was to drive through the desert of northern South Australia to the Northern Territory border and then up to Horseshoe Bend on the Fink and collect the ailing Pastor Strehlow to bring him to the rail head, thence the railway, and onto Adelaide for treatment.

All of this was to no avail and Pastor Strehlow died in the summer heat of 1922 at Horseshoe Bend in the Northern Territory, where he is buried. Through the book, Strehlow describes the Aboriginal legends and myths that colour all of the country through which the party passed.

As I, too, had driven down the Fink River and had camped at “Boggy Hole” and many of the places that he described in detail, the book was far from some academic treatise for me and bought home to me the Aboriginal mythology of country which I knew and in which I had camped. I remain firmly convinced that most of the difficulty which we Australians have had in accepting the position of Aboriginal people, and the concept of Aboriginal Native Title, arises from the fact that we have not understood how genuine is the traditional Aboriginal connection with the land and how our country was settled originally.

The first premise which needs to be accepted in a journey to understanding is the legitimacy of the concept of Native Title and the traditional connection of traditional owners with that land.

Once people realise that this is not some fairy tale, and that traditional Aboriginal people in Australia really do have a close connection with land which was handed down to them from time immemorial, then the whole issue of Native Title becomes much easier to understand and thus, accept.

To some extent, the attitude of many Australians of my generation and earlier generations is entirely understandable given the education we received. My father’s pride in all the pink on the world globe (which was how the British Empire was marked) was something which had been taught in Australian schools for 100 years and was still being taught when I was at school. There was an absolute silence about the original inhabitants of the country. Indeed, I can remember at university it was suggested that there was no point in studying Australian history as we did not have any.
Fortunately, that attitude has changed enormously. However, we cannot have a country which is built on a lie.

Australians have always been fair-minded people and have prided themselves on giving others a fair go. When the reality of white settlement actually sinks in, there comes the realisation that Aboriginal people were:

• shot at;
• massacred;
• hunted off valuable land and treated like wildlife;
• destroyed through diseases for which they had no immunity; and
• separated from their families which were broken up and distributed in such a way as to destroy them as viable units.

Once this is accepted, and that realisation actually permeates our country as a whole, then I feel confident people will understand and recognise the concept of Native Title as it applies to the few traditional owners who still remain on their lands.

 

It is only in very recent years that Australia has begun to realise what people closely associated with Aboriginal people have understand for years, that traditional Aboriginal people have a very close association with what they call their “country”. They know its secret places, tell stories associated with it and identify with that country in a way entirely different from our Western concept of ownership. The common law in Australia did not recognise Native Title until Mabo. Up until then it held to the view that Australia was “terra nullius”, meaning empty land, when settled.

On the other hand, recognition of traditional connection to land was first accorded by colonial authorities in the last century in many pastoral leases which contained specific reservations allowing Aboriginal people to roam, hunt and reside on the land. An attempt was made to force this recognition on early settlers but it was first given statutory authority in the Northern Territory Land Rights Act 1976. The concept was initially aired in the High Court in Mabo No 1 and prior to that, unsuccessfully, in the Nabalco Aluminium Case.

Mabo went backwards and forwards between the High Court and the Queensland Supreme Court for nearly 10 years in the 1980’s before a final decision was made by the High Court in Mabo No 2 in June 1993.

The decision by the High Court in Mabo No 2 resulted in the recognition by the High Court of the concept of “Aboriginal Title”, which has become known as Native Title. Aboriginal Title was said to exist if the following occurred:

1. Traditional connection with the land in question could be identified going back to first settlement (1788);
2. It could be shown that there had been no executive action by the Government extinguishing that traditional connection.

The examples of executive action given in the lead judgement, although not ratified by the rest of the Court, were “fee simple” and “leases”.

As a result of all of this, the Commonwealth Parliament passed the Native Title Act on Christmas Eve 1993, establishing the National Native Title Tribunal, which is a mediation body rather than a Court.

The Act basically set out a mechanism to enable the processing of Native Title applications. Rather than lodge a writ in either the High Court or the Federal Court claiming Native Title, the claimants lodged a formal claim with the Tribunal.

The Act does not define Native Title as such. Section 12 of the Native Title Act 1993 simply provides as follows:

“12. The common law of Australia in respect of Native Title has, after the 30th of June 1993, the force of a law of the Commonwealth.”

You may remember the enormous political criticism of the High Court for making the Mabo decision – and yet when given the opportunity subsequently for the politicians to define Native Title in the Act, they have very carefully avoided the issue.

Indeed, unkind people might call it hypocrisy.

The Tribunal advertises the claim after putting the would-be claimants through a vigorous vetting process leading to what is called “registration”. At the end of that period it holds mediation sessions between the claimants and anybody who has registered themselves as an “interested party”.

Interested parties are normally the State Government, Commonwealth Government and/or mining pastoral, fishing or tourism interests.

If agreement is reached, then that agreement is registered with the Federal Court and becomes a Court Order, whereupon it is placed upon the Register of Native Titles in Canberra.

If agreement is not reached then, in theory, the matter goes to the Federal Court for trial.

The essential point is that, in the event of disagreement, the claimants have to establish the matters outlined in the Mabo High Court decision. That is, they must establish a traditional connection to land, the title of which has not been extinguished by executive action.

As you can imagine, there is enormous difficulty for our de-tribalised, broken-up Aboriginal communities trying to comply with the requirement to prove traditional connection. Indeed, far from pastoralists who have a Native Title claim over their land being in a weak position, it seems to me they are in a very strong position.

It is very much in the interests of Aboriginal people to reach an agreement with them in order to avoid being put to proof of traditional connection, involving as it will, amongst other things, lengthy cross examination of tribal elders with failing memories by dogged and intimidating Barristers.

 

Certainty is a Myth

 

Although I thought that the pastoralists were in a particularly strong position for the above reasons, they themselves did not think so. Aided and abetted by the media, they and various pastoralist organisations had worked themselves up into a frenzy demanding what they called “certainty”.

I thought this was particularly silly since none of us have certainty of title. Even any freehold block can be compulsorily acquired by the Commonwealth or State Governments or their instrumentalities. If the Department of Main Roads decides that a freeway will take a particular course through a suburb, then people’s homes are simply purchased and knocked down. If the Department of Education decides that a particular school needs to expand through its boundaries, then people’s homes are again simply purchased and knocked down. Compensation is given but its adequacy is usually a matter of dispute.

Even the banks had made it quite plain – and this was backed up by the Institute of Valuers – that loans in relation to pastoral leases had always been assessed on the basis of plant, equipment, stock and improvements and on no other basis. The institute said that Native Title made no difference to a valuation. Unfortunately, people, pastoralists in particular, seem to think that their land values were reduced as a result of the Mabo or Wik decisions. What they simply did not seem to understand was that their land was leasehold, not freehold, and it always had been.

What does that mean? Well, pastoral leases are just that – “leases”. In effect, the lease simply allows the pastoralist to use Crown land for the purposes of conducting a pastoral business. To that effect, the pastoralist is entitled to construct fences, dams and anything incidental to that business. He does not receive and has never received some form of “de facto” freehold entitlement. Changes of use, for example to incorporate tourism activities, have always required Governmental approval.

 

State Legislation

 

The general debate about Native Title resulted in a major concern at the state level. Most Queenslanders were probably blissfully unaware that in 1991 the Queensland Government enacted the Aboriginal Land Act 1991 which established its own Queensland Land Tribunal and provided for two types of land claim:

1. Claimable land – which was gazetted for claims and to which a claim had to be made before the Land Tribunal (National Parks, Vacant Crown Land etc);
2. Transferable land – where the traditional owners could simply ask the minister to organise a transfer direct to them. Examples of transferable land were Deeds of Grant in Trust lands (which is what all of the old Aboriginal reserves had been converted into) and Shire leases for Mornington and Aurukun.

It might be thought that this was a generous gesture by the Government towards traditional Aboriginals. In fact, it was a response from the state designed to head off anticipated federal legislation, promised by the Federal Labor Government, with a view to keeping control of land administration in Queensland.

The concept of a Deed of Grant in Trust was Joh Bjelke-Petersen’s idea of how to give Aboriginal people freehold and/or land rights without actually doing it. The idea was that the Crown granted a title in fee simple (deed of grant) which was held in trust by the local Aboriginal community council for and on behalf of the Aboriginal residents of the area.

Some six years later in 1984 the Aboriginal Land Act 1991 allowed that Deed of Grant in Trust to be transferred by the minister to the appropriate traditional owners.

You could not buy, sell or do anything with a fee simple on an individual basis. Although the provisions of the Trusts Act 1973 (which governed the trusts generally in Queensland) technically applied, certain parts were excluded. Those powers were removed from the trustee and given to the minister.

Noel Pearson has written extensively on the way the “value” of Aboriginal land is locked up so as not to be available to be used by the traditional owners to whom it has been ostensibly “granted”.

Sir Maurice read the passage from Brennan CJ in Mabo which had caused almost the entire case. It read as follows:

“83. After this lengthy examination of the problem, it is desirable to state in summary form what I hold to be the common law of Australia with reference to land titles:

1. The Crown’s acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal Court.
2. On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part.
3. Native title to land survived the Crown’s acquisition of sovereignty and radical title. The rights and privileges conferred by Native Title were unaffected by the Crown’s acquisition of radical title but the acquisition of sovereignty exposed Native Title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy Native Title.
4. Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy Native Title, Native Title is extinguished to the extent of the inconsistency. Thus Native Title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g., authorities to prospect for minerals).
5. Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy Native Title, Native Title is extinguished to the extent of the inconsistency. Thus Native Title has been extinguished to parcels of the waste lands of the Crown that have been validly appropriated for use (whether by dedication, setting aside, reservation or other valid means) and used for roads, railways, post offices and other permanent public works which preclude the continuing concurrent enjoyment of Native Title. Native title continues where the waste lands of the Crown have not been so appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of Native Title over the land (e.g., land set aside as a national park).
6. Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connection between the indigenous people and the land remains. Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.
7. Native title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an indigenous people is extinguished if the clan or group, by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connection with the land or on the death of the last of the members of the group or clan.
8. Native title over any parcel of land can be surrendered to the Crown voluntarily by all those clans or groups who, by the traditional laws and customs of the indigenous people, have a relevant connection with the land but the rights and privileges conferred by Native Title are otherwise inalienable to persons who are not members of the indigenous people to whom alienation is permitted by the traditional laws and customs.
9. If Native Title to any parcel of the waste lands of the Crown is extinguished, the Crown becomes the absolute beneficial owner.”

The actual amount of country affected by Native Title is very small. The reality is that at the beginning of the 21st century there are very few Aboriginal people who can meet the stringent tests associated with traditional connection to land. 150 years of a combination of extermination and assimilation, combined with family breakups and moving people to central points more convenient to feed them and administer them, have done their work only too well. In very general terms, we are really only talking about Cape York, the Gulf country, areas of North West Queensland and the Northern Territory (which has had its own specific land rights legislation since 1976 and is an exception), north west Western Australia and northern South Australia.

Compare this with Tinsdale’s map of Australia showing tribal boundaries for our entire country and the reality that in 1788 the Aboriginality of the landscape was a genuine and real thing. Myths and story places criss-crossed the country and common features everywhere were the subject of sites of significance and inextricably connected with the local Aboriginal tribal group. What white settlement has in fact “achieved” in terms of impact on Indigenous people is almost incomprehensible. Truly, we people a land full of ghosts.

But that aside, people do not appreciate how hard the process is that Applicants have to go through to simply apply to establish Native Title. An application by a traditional owner under the federal system is made not to a “Court” style tribunal but a tribunal which runs a formal mediation process. The Tribunal is the gatekeeper to Native Title claims and that gatekeeper kept them very firmly administratively closed until the Waanyi case, to which I have referred earlier. This led to many claims having to be rejected or amended. I mention it as it is one more complexity.

So what does a traditional owner who wishes to make a claim for land do? The first step is an application for Native Title to the National Native Title Tribunal. But that is only if he wishes to pursue common law title under the Commonwealth scheme. A Queensland State Statutory Title with Reservations, with perhaps a lesser standard of proof in valuing traditional historical and or economic connection, must be an alternative to consider. The land must be vacant Crown land which is gazetted for claim (previous tenure history going to leases/reserves/national parks and other acts of extinction are not relevant before the state tribunal). This application should be filed in Brisbane.

I have left aside a discussion of: tenure history; various acts of extinction; what is commercial/historical connection; and overlaps of traditional connection (anthropologist’s reports, etc).

All of these create endless permutations and combinations. Well, by now you are probably reasonably confused. The above summary is a very simplistic one and no doubt, lawyers practising in the field will hasten to direct my attention to all sorts of points which I have not dealt with.

The thrust of my comments so far have been to show you the hurdles that the traditional owner has to overcome. That traditional owner is likely to be a person with the following characteristics. He or she:

• may well not have a high school education – many Elders have not gone beyond primary school;
• lives in an isolated and remote place;
• does not have access to telephone, facsimile, e-mail or internet or the other tools of the modern lobbyist;
• may well be a person for whom English is a second or third language.

He or she will very likely be a substantially disadvantaged person in any number of ways.

That person is then expected to work their way through the legislative maze of federal and state laws with different bureaucrats with different agendas telling them different things.

The real problem is that the effect of white settlement on what is left of traditional Aboriginal Australia has been such as to cause the most amazing disruption within Aboriginal communities. The pattern is basically the same across Australia. Missions and/or Government administrative outposts were established in places convenient to either the missionaries or the administrators. Then, the local people, who were traditional owners of the area in which the mission or Government outpost was established, had imposed upon them other Indigenous people from near and far who were relocated (legally or illegally) as a matter of administrative convenience to that mission or outpost.

One very clear tendency associated with resettlement of people who were “strangers” to the traditional land to which they were moved has been a demonstrable trend for those people to become involved in the power structures established by white administrators far more readily than traditional people who have always lived there and had simply not felt the need. These “strangers” are recognised in Queensland legislation as “historical people”.

On the other hand, for Traditional People on whose land the settlements have been established, see that land as their land, and to some extent the artificial councils and corporate bodies established by white people have not been seen by them as relevant; or alternatively, have not been seen by them as affecting in any way their traditional connection with the land. I have noticed this trend in many communities in North Queensland where there is often a large introduced historical population.

I can say that this problem in its more general form causes resentment between “traditional” and “historical” people. These sorts of difficulties exist right across Australia and result from European impact on Aboriginal Communities.

If they do not, then there are no checks or balances, because the very people who are not being properly serviced and looked after are the people least able to make a song and dance about what the responsible body is not doing for them which it should be doing. Indeed, they frequently have no idea who their responsible body is or what its obligations towards them are. So what is the result of all of this? White Australia has administrative convenience! We know who we are dealing with; but the traditional owners for whom the entire edifice was constructed may not actually get any help. Or they may get help but, if they do, this has more to do with luck than coherent planning. Pages and pages of amendments to the Native Title Act are supposed to fix this, but they do not. So where does this all take us?

It is clear that for the Native Title concept to work at all, adequate funding and resources must be provided at the grass roots level. If it is expensive then it is a price which we Australians have to pay to help the original people of our country to come to terms with, and adjust to the impact of, European settlement 200 years ago. It is a price that we have said in principle, through our national parliament via the Mabo legislation and the Prime Minister’s apology, we were prepared to pay. This simply represents an adjustment in order to give practical effect to the high-sounding principles set out in the recitals to that legislation.

If we are worried about the costs which all of the above will entail, then perhaps some justification can be found in the historical fact that all the colonial governors sold, leased and gave away in return for services, what were termed “the waste lands of the Crown“. It was the Government’s major source of revenue. The Cairns Argus of 8 May 1895 noted:

“A spectacle was witnessed on the first day of the present month – a kind of Government function that certainly was not creditable to the authorities and should bring a blush of shame to the cheeks of every colonist. About 150 Aborigines assembled in the Police paddock, and the officers of peace opened a bale of blankets containing 50, tore them in halves, and distributed them amongst the dusty natives… There seems to have been some qualms of conscience passing though the official mind in Brisbane in connection with this half-blanket distribution farce, for at the very time grinning recipients were clutching their coverings a telegram came through from the capital stating that every Aboriginal in the colony, except those permanently employed on stations, was to receive a whole blanket. Astounding magnanimity! We have taken from the Queensland natives no less than 428,663,360 acres of land. Out of this vast and luxuriant area, about 10 million acres have been sold for six and a quarter million cash. Another three hundred millions of acres have been leased, from which the State derives an annual rental of £332,800 [pounds]. In return for this Governments, past and present, have given these black-skinned, patient, uncomplaining children of the soil one whole blue blanket per year, costing perhaps five shillings each! And yet we profess to call ourselves Christians and even set about in a spasmodic way to try and save our black brothers’ souls! Can anything be more pitiful, more degrading to our boasted civilisation, more fiendishly selfish, more devilishly unjust, more indicative of British national greed?”

In other words, having taken the land for nothing off the Aboriginals, the governors then sold it to the white settlers and those sales funded the operation of the early colonial societies. No doubt some enthusiastic historian with a penchant for land titles records can peruse first grants of all land on a state-by-state basis and tell us how much Aboriginal peoples’ birthright was sold for. A conversion of this amount into present day dollars would no doubt go some way to making us all feel a little better in terms of justifying the cost of undertaking what repair can, 200 years later, be done to traditional communities still suffering from the impact of white settlement.

Of necessity, I have treated many complex issues simplistically and for that, I apologise. However, it is necessary for us to have a broad overview of Native Title before we can come to grips with the very real policy arguments and difficulties which occur when we try to rectify the wrong 200 years later. From a practical point of view, the failure to deal with Aboriginal people fairly invites problems and difficulties for our community as a whole, both in terms of how we are looked at internationally and also how our community will function over the next 50 to 100 years. Ireland and the Balkans should serve as timely reminders, if any were needed, of the consequences of a people not coming to terms with itself. What early settlement did to Aboriginal people was disgraceful and terrible. As a nation, through the Mabo and Wik cases, the Native Title Act and our “sorry” statement, we have recognised this and have set about trying to put things right and achieve reconciliation. It would be a shame if the excellent philosophical concepts and ideals were diluted or not given genuine effect because of the practical difficulties experienced in carrying out or trying to carry out a policy.

I do not subscribe to the “Black Armband” view of history, whatever that may be. Quite frankly, I think Professor Blainey missed the point. Although given his recent work even he seems to be having second thoughts. I just want some honesty in our national life. It is not up to me to feel guilty for actions taken by the early settlers. But it is up to us all as a nation to feel guilty and to feel a sense of shame about modern Australia’s failure to acknowledge that history.

Australia does know the truth; that is why parliament’s “apology” in early 2008 was so very important.