What has native title achieved?
Last month marked the 20th Anniversary of the Mabo High Court ruling which resulted in the first native title recognition for Aboriginal people in Australia.
In 1982 Eddie ‘Koiki’ Mabo led a legal claim of ownership rights to land on Murray Island in the Torres Strait on behalf of the indigenous Meriam people. A decade later on June 3, 1992 the High Court of Australia overruled previous court decisions in relation to native title claims and recognised the Meriam people as the native title holders of their traditional lands.
On the anniversary of the historic Mabo case, Attorney General Nicola Roxon and Indigenous Affairs Minister Jenny Macklin stated: “Native title leaders, Governments, and industry now all have a role in ensuring the Mabo legacy delivers economic, social and cultural opportunities for Indigenous Australians.”
Yet even a cursory glance at the evidence shows native title has not delivered “economic, social and cultural opportunities” for Aboriginal people on any meaningful scale. High unemployment, high incarceration rates and dramatically low life expectancy are symptoms of the exploitation, dispossession and marginalisation Aboriginal people have continued to face in the twenty years since the Mabo ruling.
Native title is not land ownership. In fact, all other land titles take priority over native title. Native title holders are usually granted rights to use land for certain purposes like camping, hunting and ceremonial activities. However, if there is conflict between native title and any other form of commercial land use, native title is extinguished. Due to this native title holders have no power to block mining operations or commercial use of their land.
For example, the Yindjibarndi native title holders in the Pilbara region of Western Australia have been struggling to oppose the development of an iron ore mine that would cover up to 50% of their land. Yindjibarndi Aboriginal Corporation CEO Michael Woodley stated:
“The Native Title legislation is designed to remove connection from Indigenous peoples to their country for the benefits of colonial/imperialist and capitalist class.”
“If we had a genuine choice of being able to say, “No mining”, then they (the Aboriginal people) would say no. The Yindjibarndi people do not want to see their country become an industrial site for the benefit of shareholders and investors. We do not want Yindjibarndi land to become a haven for the mining investors to become rich at the expense of Aboriginal people who will become poorer materially, physically and spiritually.”
Prior to Mabo, the official position of the Australian state was that Aboriginal people had no valid claim under native title common law to their traditional lands. Their reasoning was that before the arrival of the British colonisers in the 18th century, the 250 or so distinct individual nations that populated the Australian landmass and surrounding islands did not constitute sovereign nations. It was argued that Aboriginal cultures, despite their complex and diverse systems of law, custom and language, were too primitive to be recognised as genuine societies.
In this sense Aboriginal people were relegated to the status of merely being part the native flora and fauna, allowing the British to declare the land ‘terra nullius’ (inhabited by no-one).
In this era of British colonialism there were three ways under British law to establish colonies in the name of the Crown.
The first was by conquest. This approach required the colonisers to negotiate just compensation to the indigenous population for all lands seized.
The second was by the consent. This approach also required the colonisers to negotiate just compensation to the indigenous population for all lands taken.
The third way was to declare the land terra nullius (unoccupied). This approach removed the requirement to negotiate compensation with the indigenous population.
The historical significance of the Mabo ruling effectively rewrote the official history of Australia, negating the claim that Australia was ‘terra nullius’ upon British arrival and ruling that the Aboriginal nations were the prior sovereigns of the land.
This opened up a political and legal minefield upon which politicians, the media and conservatives fuelled public hysteria about Aboriginal people taking over the entire country, including people’s backyards.
The response of the Labor Keating government was to immediately legislate the parameters of native title in the Native Title Act (1993). This ensured only extremely limited forms of native title could be claimed, protecting the interests of mining companies, pastoralists and other land owners.
The struggle for land rights
Despite its weaknesses, the granting of native title in 1992 was the result of decades of struggle by Aboriginal activists.
From the 1950’s onward Aboriginal people had began to politically organise on a larger scale than previously, initiating struggles for basic rights such as the right to vote and the right to equal wages.
However, when these rights were won, they did not resolve the deeper problems created by genocide, the Stolen Generation, institutionalised racism, and land dispossession.
Throughout the 1960’s and early 1970’s, young Aboriginal activists in the urban centers were being inspired by international upheavals, particularly the various national liberation struggles of the time and the American Black Power movement.
This new generation of Aboriginal activists were angry, astute and increasingly influenced by radical politics like the Maoism of the Black Panther Party in the US.
It was these young, militant Aboriginal activists who initiated the famous occupation of the lawns of parliament in 1972. The ‘Aboriginal Tent Embassy’ became a platform from which Aboriginal people could articulate their grievances and their demands to both a national and international audience.
It was this movement around the Aboriginal Tent Embassy that forced the issue of Aboriginal land rights into the political mainstream.
This political struggle gave confidence to those seeking native title claims through the courts. The fact that the question of Aboriginal land rights could no longer be ignored by the Australian state led to the Mabo ruling two decades later in the High Court of Australia.
However, the native title granted in the Mabo ruling, and later legislated in the Native Title Act, had very little in common with the type of land rights based on genuine ownership and self determination demanded by the earlier political movement.
‘Native title is not land rights’
Aboriginal activist and historian Gary Foley reflects on this, stating that
“The Mabo ruling gave [Prime Minister] Keating an opportunity to displace the Aboriginal struggle for land from the political arena into the legal one.”
He continues: “What was until 1992 an intense and successful five decade political battle on the part of Aboriginal peoples, was suddenly transformed into legal struggle where Aboriginal people were at the mercy of astronomically-priced QC’s and Barristers, and a type of land title defined by the inheritors of colonial power.”
“When the full bench of the High Court in the Mabo case found that terra nullius was now no longer a valid notion, the erstwhile judges decided that ‘native title’ existed in 1788, and therefore must ‘survive’ today in those parts of Australia where freehold title did not exist. This finding meant that in all the main populated areas of Australia where freehold title of land predominates, the Aboriginal people had been dispossessed, without compensation, and had little or no chance of succeeding in any native title claims. This aspect of the Mabo decision represents the greatest single act of dispossession in Australian history since 1788.”
For a growing number of Aboriginal activists who subscribe to this view, emphasis on claiming native title has been replaced with a focus on questions of ‘sovereignty’.
Whilst ‘sovereignty’ has a diversity of meanings to different activists, its basis, like native title, can be traced back to the Mabo case.
It is often claimed that if Australia was not terra nullius upon British arrival, as ruled by the High Court, the ‘terra nullius’ option of claiming colonies under British colonial law is not valid in relation to Australia. Of the other legal methods (conquest or concession), both require the coloniser to negotiate just compensation to the indigenous sovereign nations.
This question of sovereignty, raised by the Mabo ruling, has become the focus of many Aboriginal activists today.
As valid as these arguments may be, as are the claims to native title valid, a focus on ‘sovereignty’ purely in the legal sense is likely to fall into the same trap that Gary Foley outlined in relation to native title: “displac[ing] the Aboriginal struggle for land from the political arena into the legal one”
The challenge facing Aboriginal activists and their supporters today is expressing the demand for sovereignty and land rights in political, not just legal, terms.
The Socialist Party believes ‘sovereignty’ needs to be linked to a political programme that re-establishes the political demands of the 60’s and 70’s: Genuine land rights linked to full self-determination for all Aboriginal people who wish to claim it.
But the fight for these demands cannot be solely left on the shoulders of Aboriginal people alone.
In Australia, where mining magnates determine political outcomes, the struggle for Aboriginal land rights and self determination needs to go beyond the current system of big business control and private ownership. The profit driven system of capitalism is far more interested in the profit margins of the wealthy elite than the cultural and economic aspirations of our communities, whether Aboriginal or not.
Aboriginal people must find allies amongst non-Aboriginal workers, students and activists who share their interest in fighting for a society that puts people before profit.
Only a socialist society built on genuine democracy and collective ownership can ensure Aboriginal self-determination and genuine land rights. By taking the land out of the hands of big business and into collective community control we can end the unnecessary destruction of land and culture for profit.
By Mel Gregson