The land is my backbone. I only stand straight, happy, proud and not ashamed about my colour because I still have land. The land is the art. I can paint, dance, create and sing as my ancestors did before me. My people recorded these things about our land this way, so that I and all others like me may do the same. I think of land as the history of my nation. It tells us how we came into being and what system we must live … My land is my foundation … Without land I am nothing.

Galarrwuy Yunupingu

We were always going to be here in this country. We were a part of the creation. A part of this country just like any other of the animals that are here, the flora and fauna. Aboriginal people are a crucial element in that ecology. The crucial element.

Robbie Thorpe

Just over three years ago, Australia’s ex-Prime Minister Kevin Rudd read out an apology to the Federal Parliament on 13 February 2008 wherein he apologised for the acts of his forebears in facilitating, implementing and participating in the policy that created the ‘Stolen Generations’. The term Stolen Generations refers to the children of Australian indigenous and Torres Strait Islanders who were snatched from their families and communities by federal and state agencies as well as church missions, in line with acts passed by the respective parliaments.

Although the removal of indigenous children from their families can be traced back to the earliest days of colonial settlement in Australia, the term ‘Stolen Generations’ refers primarily to the legally sanctioned Australian government policy to do so between 1909 and 1969.

For many, Rudd’s apology was seen as a significant breakthrough on the part of the Australian state in finally coming to terms with and accepting its responsibility for the brutal treatment of indigenous Australians. Patrick Dodson, former chair of the Council for Aboriginal Reconciliation, even went so far as to claim that:

“After this moment Australia can be imagined as a different place, a place where Aboriginal citizens no longer live in third world conditions.”

However, while the apology was in many ways a significant step forward, particularly coming after the Howard administration that had spent years aggressively combating and denying the validity of Indigenous land rights, much remains to be done.

Indeed, after the initial euphoria had died done, the distance that remains to be travelled for Indigenous concerns to be given serious consideration soon became evident. One of the first signs of this was the peremptory rejection of the argument that the date for Australia National Day was a “festering sore”, given its commemoration of the onset of European colonisation, thus implicitly excluding indigenous peoples.

However, arguably the most important issue for Australia’s indigenous population is the issue of ownership of the lands they have occupied for over 60,000 years.

In economic terms, ownership of this land would prove highly beneficial for indigenous people in tackling the problems that plague their communities. As it stands, Indigenous Australians live some 20 years less than their non-Indigenous counterparts, have a three to five times higher childhood mortality rate, are 12 times more at risk of infectious diseases and twice as likely to be unemployed. Furthermore, despite being the continent’s original inhabitants, only 30% of indigenous households own their own land, against 70% of non-indigenous Australians.

Land is also of critical importance in terms of the social and cultural identity of indigenous people. The Gagudju Elder, Big Bill Neidjie, eloquently captures the deep bond between indigenous identity and their ancestral lands:

“I feel with my body. Feeling all these trees, all this country. When this blow you can feel it. Same for country… you feel it, you can look, but feeling… that make you.”

In addition to the economic and political pressures pushing for expropriation of indigenous territories, the cultural and social differences in how land was viewed served only to create even greater division between the native inhabitants and the colonists. Whereas for indigenous Australians, the land served as the “source of social, spiritual and legal arrangements” founded on the attendant duties of “reciprocity and custodianship,” the British-derived concept of the new arrivals was intrinsically bound up with the legal notion of private possession. Given the political dominance of non-indigenous people, their concept of land became law, creating a situation that continues to work greatly to the detriment of the indigenous inhabitants.

The 1992 Mabo land case, which concerned the Murray Islands in the eastern part of the Torres Strait, appeared to herald a new dawn in this respect, when it recognised native title and the right of indigenous Australians to their traditional lands. However, for this recognition to apply, Aboriginals were obliged to prove a ongoing and uninterrupted association with the land in question and to show that there had been no “explicit act of the government, federal or State” that might have extinguished their right of native title.

Prior to this ruling, Australian law had given primacy to the principle that upon acquiring sovereignty, the colonisers had also obtained ownership of the land. This had left no space for the current legal system to recognise the rights of pre-existing law through the medium of native title.

However, while the new ruling did take a step forward in acknowledging the legal right of native title, it also elaborated the principle of ‘extinguishment’. Extinguishment serves to limit or qualify the extent to which native title might be legally recognised. Under this principle, if the British Crown had undertaken any act that was either wholly or partially inconsistent with native title, the right of the indigenous people to their land has been effectively removed.

Furthermore, land rights claims could be extinguished if the judge decided that the indigenous people concerned had in some manner `lost´ their connection with the land as a result of ceasing to acknowledge the local laws and customs. Therefore, as Lisa Strelein, the Director of Research Programs at the Australian Institute for Aboriginal and Torres Strait Islander Studies, highlights, the Mabo judgement was effectively “compromised”, as it resulted in the “recognition and protection of native title… [being] afforded by the Australian law on its own terms on the basis of convenience.”

In 1996, the land right case Wik, considered the issue of whether official leasehold grants and pastoral leases in the north of Queensland had effectively extinguished native title. The High Court ruling that they did not automatically negate the claims of native title appeared to provide a broad opportunity for Aboriginals to claim ancestral land throughout Australia.

However, despite this ruling being merely one of `common sense´, as argued by Justice Kirby, in that the same decision would apply to land owned by both non-indigenous and indigenous Australians alike, it provoked a sizeable backlash on the part of the mining sector, landowners, farmers and conservative politicians. Subsequently, the Howard administration pushed through the 1998 Native Title Amendment Act, which was devised with the express intention of further limiting the potential for indigenous land rights claims.

The obstacles facing indigenous peoples in advancing their territorial claims can most clearly be seen in northern Victoria, where the Yorta Yorta people staked a claim for the lands they had continuously occupied since the arrival of Captain Cook.

In 1998, Judge Olney of the Federal Court rejected their claim, ruling that the “tide of history had washed away any real acknowledgement by the Yorta Yorta of their traditional laws and customs”. In 2002, the High Court upheld his judgement. In doing so, they concurred with the Federal Court judge’s favouring of European written documentary evidence over oral indigenous history and tradition.

Ironically, at the same time as non-Indigenous Australian society has been putting pressure on Aboriginal people to more effectively assimilate, they are being punished for allegedly failing to safeguard their historical linkages with their ancestral lands.

This ruling has had a seriously chilling effect on native title aspirations, as indigenous claimants are obliged to “assume the entire onus of proof, without the presumption of continuity” for their rights to be recognised. Non-indigenous political, economic and legal frameworks will therefore continue to have an ‘imperialistic’ effect on the sovereignty of the indigenous population and their efforts to maintain their lengthy historical heritage and independent identity.

In effect, the indigenous community faces a double colonisation and dispossession. Firstly, their lands were seized from them unjustly and by force over a brutal period in their history. Now, in order to retrieve some of the lands they lost, they are obliged to return to the courts of the civilisation that dispossessed them in the first place.

This situation has an exhausting effect on indigenous leaders and communities as they must engage in extensive efforts to furnish ‘proof of claim’ to a highly exacting non-indigenous legal system.

Most importantly, the question needs to be asked as to whether the Australian legal system can ever effectively accommodate the needs and aspirations of the indigenous population with respect to their land rights?

Given the history of native title in Australia, it is difficult to see how the indigenous land rights question can ever be truly respected through the current legal system. Rather, what is required is a genuine acknowledgement on the part of the non-indigenous population of the wrongs that have been visited upon the indigenous community, accompanied by a genuine desire to undertake substantive economic, political and social measures to redress the inequalities that have occurred as a result.

Through the restoration of their lands, the indigenous population of Australia will have the possibility of devising their own independent economic and political strategies and, even more significantly, preserve and continue their cultural history as they have done for the previous 60,000 years. Failure to adopt this approach could result in a real ‘end of history’ for one of the world’s oldest living cultures, and a tragic loss for all of humankind.

From the rich man’s table, Cartoon by John Frith, The Herald, July 1968
Reproduced courtesy of the National Library of Australia

Backround
In From the rich man’s table Frith reflects upon the start of the modern land rights movement, which saw Gurindji Aboriginal people ‘walk off’ Wave Hill Station in protest over conditions and their rights to traditional lands.