Aboriginal Land Rights

We cultivated
our land, but in a
way different
from the white
man. We
endeavour to live
with the land;
they seemed to
live off it.
Tom Dystra,
Aboriginal elder

Vincent Ligiari and PM Gough Whitlam 1975

I want to acknowledge
that we Australians have
still much to do to
redress the injustice and
oppression that has for
so long been the loss of
Black Australians . And I
want to give back to you
formally in Aboriginal
and Australian Law
ownership of this land of
your fathers.
Whitlam, 1975

SYLLABUS DOT POINT

Outline the importance of the following for the Land Rights
movement:
- Native Title
- Mabo
- Wik
Analyse the importance of the Dreaming for the Land Rights
movement.

The presumption of Terra Nullius

Latin for Land Belonging to

No One.
Captain James Cook had
been told to negotiate with
the natives.
He justified his decision by
stating:
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 beast looking
for food

The COST of TERRA NULLIUS:

The Crown claimed ownership of all

Aboriginal land under terra nullius.

No treaties or agreements were

made.

Terra Nullius began the devastating

legacy of dispossession.

The land is my backbone I only

stand straight, happy, proud and not
ashamed about my colour because I
still have land I think of land as the
history of my nation.
Galarrwuy Yunipingu, Aboriginal musician

If you belong there your country will find

a way to call you back. Country needs to
be remembered, needs to be listened to,
needs to know that we can still speak its
language.
Aboriginal elder in TV series Double Trouble

INDIGENOUS POLICIES THAT HAD DISASTROUS EFFECTS:

MISSIONISATION
Aborigines were to be saved, their religion was not recognised, practices were pagan, they were to be
Christianized.

The churches were part of the colonial process therefore part of the systemic segregation and assimilation
processes of the colonial institutions.

In the mission stations operated by the denominational churches, Aborigines were given new names,
forbidden to speak their native language, forced to adopt Christian values, forbidden who to marry and
removed from their parents and tribes, thereby creating the Stolen Generations.

The Churches have acknowledged their complicity in the destruction of Aboriginal customs and traditions.

Protectionism/Missionisation meant that Aborigines became totally dependent on colonial institutions

(missions) for survival.

SEPARATION AND SEGREGATION

The policies where cruel and comprehensive:
Name were changed.
Traditional languages were forbidden to be spoken.
Social roles were changed.
Initiation rites were forbidden.
Control placed on who could marry whom.
Work/employment roles was dictated by authorities.
Wages and employment conditions sometimes they worked on pastoral stations just for sustenance.
Movement (from reserves and missions) was restricted.
The results/effect of such policies were:
Loss of link with the land.
Religious rituals were not practised.
Initiation rites was lost.
Languages were forgotten.
Traditional gender roles were blurred.
Kinshipthat bond that kept communities together was altered.
Aboriginal spirituality and culture was overtaken by white dominance and Aboriginal traditions were
devalued.

Prior to 1965 Australian Governments

had maintained an unrelenting policy of
ASSIMILATION. It was intended that
Indigenous people would be absorbed
into the maintain stream white european
population and its culture and religion or
die out!!
This was met with ACTIVISM and in
1938 Aboriginals declared Australia Day
(26th Jan) as a Day of Mourning.

In 1965 a policy of INTEGRATION and SELF

DETERMINATION was adopted.

Integration recognised the right of Aboriginal people to

maintain their culture, traditions and languages and to
live in their own communities.
Self Determination was a policy were Aboriginals
could organise and develop their own leadership, gain
support and run their own economic and social
developments through Federal Government funding.

WHAT IS NATIVE TITLE AND HOW DID IT EVOLVE?

Nothing was done about changing the adopted law of terra nullius, declared in 1788.
This approach was confirmed in 1889 by the Privy Council which in Cooper v. Stuart
held that Australia in 1788 was a tract of territory practically unoccupied without
settled inhabitants.
This remained the law until 1992.
In 1966 the Gurundji people went on strike pressing their claim for part of the Wave Hill
pastoral station. This was known as the Wave Hill strike.
In 1967 there was a referendum that allowed constitutional changes in favour of
Aborigines. For the first time they were counted in a national census and the
Commonwealth took over jurisdiction regarding Aboriginal peoples and affairs.
In 1972 the Aboriginal Tent Embassy was established in front of Parliament House
Canberra focusing attention on Aboriginal injustices, including land rights.
In 1971 the Northern Territory Supreme Court determined that Aborigines (Yolngu
People) had no legal rights to their lands.
In 1978 their petition failed again.

THEN ALONG CAME EDDIE MABO.....

THE MABO CASE - 1992

The

case concerned the Murray Islands in Torres Strait

which had been possessed by the Colony of Queensland in
1879.

In 1982 Eddie Mabo and two other members of the Meriam

people who occupied the Murray Islands brought an action
against the State of Queensland and the Commonwealth of
Australia in the High Court claiming that the Crowns
sovereignty over the islands was conditional on the rights of
the Meriam people based upon local custom and traditional
native title.

With Mabo the High Court declared that due to historical

facts and modern attitudes to human rights, the common law
of Australia could no longer refuse to recognise the native
title of indigenous inhabitants.

THE HIGH COURT MABO DECISION - 1992

The Mabo decision

recognised the
indigenous right to
ownership of the land
which had already
existed, and was
never surrendered, for
thousands of years
before their
dispossession in
1788.

1.

Although the British Crown acquired sovereignty, it did not acquire full
ownership of the land. Sovereignty allowed the Crown authority to take
beneficial ownership of the land if it chose to do so. But, if it did not choose
to do so, the land continued to belong to the indigenous people according
to their laws and customs.

2.

Where native title continues to exist, the laws and customs of the
indigenous people who have connection with the land determine the use
of the land. For example whether to reside on the land, hunt and fish or
hold ceremonies.

3.

Native title to particular land is extinguished if the tribe or group having

native title loses its connection with the land.

4.

Native title over any part of the land may be surrendered to the crown but
the rights and privileges of that Native title cannot be passed on or sold
etc.

The Native Title Act - 1993

The government of the day accepted the many of the decisions of Mabo and set about a process of
dealing with the challenges it posed. The Native Title Act of 1993 provided for the following:
1.

Recognition and protection of native title rights.

- Native title cannot be extinguished in the ways outlined in Mabo A connection to the land may still
exist even if it is not a physical connection.

2.

A mechanism regulating future activities affecting native title.

- Indigenous were given the right to negotiate Land Developments in the National Native Title
Tribunal if native title is established.

3.

A mechanism by which native title rights can be established and compensation determined.
- Although the guidelines are strict and specific, Indigenous people are provided assistance and
reduced legal formality when building a case for Native Title.

4.

Validation of past acts which may be invalid because of the existence of native title.
- Aboriginal people agreed that any unlawful possession of land made after the Racial
Discrimination Act of 1975 would be validated and native title on that land extinguished.

5.

Establishment of an indigenous land fund for those indigenous people who will not benefit
from native title because of prior extinguishment.

Both Mabo and the Native Title Act left one specific issue unanswered: Did Pastoral leases
granted by the Crown extinguish any right to Native Title?
PASTORAL LEASES - Government contracts for rural landowners to use Crown Pastoral land for the grazing of
animals, or growing of crops.

THE WIK CASE OF 1996

In Wik, the Wik and Thayorre peoples of northern Queensland claimed native title over lands which had been the
subject of pastoral leases. It was argued by those opposed to the that the pastoral leases had extinguished
native title.
The question before the court was - Did the granting of the pastoral leases under consideration extinguish
all native title rights? The decision:
The pastoral leases under consideration in the case did not confer exclusive possession on the pastoralist.
The leases did not necessarily extinguish all native title rights and interests.
Any extinguishment of native title can only be if the Aborigines can establish a connection to the land.
Where native title rights can coexist with the pastoral lease rights then the leases can survive, if not, the
pastoralist must prevail.
Wik created a minefield of legislation and some claim it weakened and undermined the gains made in the Native
Title Act.

THE 10 POINT PLAN or THE NATIVE TITLE AMENDMENT ACT

John Howard proposed a 10 point plan called The Native Title Amendment Act to make the issues between
the Native Title Act and Wik workable.
The main feature of this legislation was to transfer the power to upgrade the leasehold title to freehold title
from the Federal to State Governments, therefore making it simpler to extinguish native title.
A secondary feature of the Ten Point Plan was the sunset clause, which prevented Aboriginal people from
making native title claims beyond a certain date. This was aimed at minimising confusion over when native
title claims could be made to ensure that the correct legislation could be applied with certainty.
This legislation effectively cut off the ability of many Aboriginal groups to claim native title. This is because
firstly many Aboriginal groups cannot afford the litigation fees involved in native title claims. Secondly, native
title claims are difficult to make because it is difficult for a society based on an oral tradition to produce
written evidence to substantiate their claims

What is new in the amended Native Title Act?

1.

Validation of Intermediate Period Acts - Any outstanding claims caught up or lost in the period of
legislation confusion, particularly during the implementation in individual states were given re-evaluation
status.

2.

Confirmation of Past Extinguishment - Decisions on land where native title was legitimately extinguished
will stand. This point is still open for objection.

3.

Revised claims process - Claims are now processed through the Federal Court and must be by Groups no
individuals with the backing of the National Native Title Tribunal.

4.

More complex procedures concerning future acts - new guidelines concerning the rights and activities of
those with Pastoral Leases.

5.

Changes to Right to Negotiate - A more stringent set of guidelines that looks at both the importance of
native title and the national interests in matters of mining and infrastructure.

6.

Greater Emphasis on Agreements - A detailed scheme ensuring that details made between Indigenous
and the Government concerning future activities, adequately protect both parties.

7.

Amendments relating to representative Aboriginal/Torres Strait Islander bodies - Improvements in the

system assisting Indigenous peoples in the preparation of their claims.

Gather round people let me tell you're a story

An eight year long story of power and pride
British Lord Vestey and Vincent Lingiarri
Were opposite men on opposite sides
Vestey was fat with money and muscle
Beef was his business, broad was his door
Vincent was lean and spoke very little
He had no bank balance, hard dirt was his
floor
From little things big things grow
From little things big things grow

FROM LITTLE THINGS

BIG THINGS GROW

CHORUS
Then Vincent Lingiarri boarded an aeroplane
Landed in Sydney, big city of lights
And daily he went round softly speaking his
story
To all kinds of men from all walks of life
And Vincent sat down with big politicians
This affair they told him is a matter of state
Let us sort it out, your people are hungry
Vincent said no thanks, we know how to wait
CHORUS

Gurindji were working for nothing but rations

Where once they had gathered the wealth of
the land
Daily the pressure got tighter and tighter
Gurindju decided they must make a stand
They picked up their swags and started off
walking
At Wattie Creek they sat themselves down
Now it don't sound like much but it sure got
tongues talking
Back at the homestead and then in the town
CHORUS
Vestey man said I'll double your wages
Seven quid a week you'll have in your hand
Vincent said uhuh we're not talking about
wages
We're sitting right here till we get our land
Vestey man roared and Vestey man thundered
You don't stand the chance of a cinder in snow
Vince said if we fall others are rising

Then Vincent Lingiarri returned in an

aeroplane
Back to his country once more to sit down
And he told his people let the stars keep on
turning
We have friends in the south, in the cities and
towns
Eight years went by, eight long years of
waiting
Till one day a tall stranger appeared in the
land
And he came with lawyers and he came with
great ceremony
And through Vincent's fingers poured a handful
of sand
CHORUS
That was the story of Vincent Lingairri
But this is the story of something much more
How power and privilege can not move a
people
Who know where they stand and stand in the
law - CHORUS

LAND RIGHTS AND THE DREAMING

The Dreaming and its inextricable connection to the land is the driving motivation behind the
Aboriginal people's desire for land rights.
The land rights movement is testament to the centrality of the role of land to Aboriginal spirituality.
Without the land, the Dreaming cannot be communicated because it is from the land that the
stories of ancestor spirit beings in the Dreaming flow.
The land acts as a mother for the Aboriginal people.
It is through their intimate connection to the land that the Dreaming can be accessed.
The identity of every Aboriginal person is inextricably linked to the land.
The Land Rights movement is important in helping Aboriginal people re-establish spiritual links
with the land and their cultural identity.
All aspects of Aboriginal life are rooted in the stories of the Dreaming which emerge from the land.
Aboriginal belief systems, rituals, traditions and laws are all intimately connected with the land.
Aboriginal people have ritual responsibilities to take care of the land which is a resting place for
ancestral spirit beings.
One of these ritualistic responsibilities is the performance of balance rites on sacred sites as a part
of the Aboriginal totemic system.
Native title granted over sacred sites is a significant part of the Land Rights movement.
Native title has assisted some Aboriginal groups to gain economic and social independence.