Archive for the ‘Indigenous policy’ Category

Most Australians would be aware, at least, of the High Court’s decision in Mabo, which was handed down on 3 June 1992. Many would also recognise the phrase terra nullius and would know that it has something to do with the Mabo decision.

However, there has historically been a lot of misinformation about the meaning of Mabo, and on this, the 17th anniversary of the decision (and the final day of Reconciliation Week this year), I thought it was worth posting about what it means, what it doesn’t mean, and some of the current issues related to native title.

Question #1: Did Aboriginal and Torres Strait Islander people have any land rights prior to the Mabo decision in 1992?

They did, but these were very limited – basically, between the early 1960s and the Mabo decision, most states had put into place legislation (as the Federal government had done for the Northern Territory) which granted Aboriginal and Torres Strait Islander people some ownership of land which had been reserves. Notably, Western Australia did not have any such legislation – and as you can imagine, that’s a big deal, given it’s the largest state.

Question #2: If there was already legislation, what was the significance of Mabo?

Well, first of all, the legislation only gave a very specific group of Aboriginal and Torres Strait Islander people any rights to land (again, any Aboriginal people from Western Australia didn’t have any protection!).

But the real significance of Mabo (in terms of how it protected land rights) was the recognition of native title in the Australian common law. Before Mabo, there had been a case (Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141) in the Northern Territory in which a judge had rejected the concept of native title, essentially on the basis that there had never been any governmental recognition of native title.

This decision was criticised for a while, but (possibly because of the limited land rights granted to some Aboriginal and Torres Strait Islander people by legislation) the question of native title didn’t come up again properly until Mabo.

Question #3: Did Mabo grant Aboriginal and Torres Strait Islander people any land rights?

No. In fact, ironically enough, it actually validated the dispossession of Aboriginal and Torres Strait Islander people that took place before 31 October 1975. The significance of that date is that on that day, the Racial Discrimination Act 1975 commenced.

In Mabo, the High Court held that there was no general restriction in Australian law (either under the Constitution, general principles of common law or other legislation) that prevented the dispossession of Aboriginal and Torres Strait Islander people before the Racial Discrimination Act came into force. As a result, any land granted (ie no longer held by the Crown) before 31 October 1975 cannot be subject to native title claims. This includes most land in urban areas, and a significant amount of land in other areas.

However, the Court held that any attempted extinguishment of native title after 31 October 1975 is subject to the Racial Discrimination Act. That means that native title can be extinguished after 31 October 1975, but there must be a clear intention in the legislation to extinguish native title. (The High Court split on the issue of compensation.)

Question #4: You haven’t mentioned terra nullius yet. What’s that all about?

Although terra nullius is one of the “take-home” phrases from Mabo, the concept is actually not enormously important to the decision.

One judge (Brennan J) did focus on the concept, but this appears to be because he felt it necessary to overrule previous cases which he thought applied. Other judges seemed to simply accept that the concept of “native title” could exist whether or not a place was terra nullius. Whether or not Australia was terra nullius prior to the arrival of the British was irrelevant, and in fact, most of the Court did not actually reject the concept.

Question #5: What must Aboriginal or Torres Strait Islander people prove in order to establish native title?

They have to prove that native title has not been extinguished as described above.

They also have to prove a continuing connection with the land. (Since Mabo, this is governed by the Native Title Act 1993.)

This means that people who were forcibly removed from their land suffer a double-whammy. Where a group of people was entirely dispersed, it is likely to be very difficult to establish a native title claim.

The current Chief Justice of the High Court of Australia, Justice French, has recently suggested that the system is unfair and unwieldy. [NB: that link is a .pdf – there’s a .html list of speeches here.] His Honour is widely quoted as saying that there should be a reversal of the onus of proof – that is, that rather than the native title claimants having to prove their continuous connection to the land, that the other party should have to disprove it. This is not stated in terms in the speech, but there is a suggestion that the difficulties faced by native title claimants are opposed to the generally beneficial purpose of the Native Title Act.

Some current issues

One current issue is that referred to French CJ: the difficulty that native title claimants still face in proving their continuous connection to the land in question. This means that native title cases tend to take years to resolve, with enormous amounts of evidence put before the court. This puts a strain on the parties (as litigation always does, and particularly because it is an issue which is so important to so many people) and on the justice system.

I’d highly recommend reading the Chief Justice’s paper, which I hope is reasonably accessible to non-lawyers.

Another current issue is the NT Intervention. One very topical issue is the pressure the Federal government is placing on some Aboriginal groups in the NT to enter into leases, with the Aboriginal groups leasing their land to the Federal government in return for an “investment”.

It’s not directly related to native title in the Mabo sense, but it raises the same sorts of questions – and makes many people fear that the government has some ulterior motive in requiring the leases to be granted.

There are other current issues, but this post is already long enough, so I’ll leave them to be raised in comments.


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According to the numbers provided by the Sunrise Health Service, before the intervention, 20% of indigenous children in the area it serves were anaemic.

All but one community in that area has suffered welfare quarantining since the intervention.

Now, 55% of indigenous children in the area are anaemic.

A call to the Federal Government: take a good hard look at yourselves. Remember that apology? Yeah, that apology.

Let’s make it mean something, hey?

Because I can’t see it meaning much right now.

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I can’t comprehend how things like this are still happening.

(That last link is a link round-up – another is here.)

The story I’m talking about is this (and apologies for taking a week or so to blog about it): Mr Ward (his family have asked that his first name not be used), an indigenous man, was arrested after being charged with drink-driving.

He was locked into a metal, un-air-conditioned lock-up van (operated by a private contractor, GSL) on a hot summer’s day for a journey of several hundred kilometres.

He died. With third degree burns from the metal of the lock-up.


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If this happens, it will be a very good thing: Kevin Rudd has told indigenous leaders “that he intend[s] to honour an election promise to recognise the rights of Aboriginal people in the constitution”.


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In some good news, the trainee lifeguards at the centre of the Alice Springs Haven Backpackers scandal have been granted a trip to Sydney – complete with free flights, accommodation, training and other perks – to complete their bronze medallions.

I’m always a little skeptical about grand gestures like this. Don’t get me wrong: it sounds like an absolutely fantastic offer for the trainee lifeguards involved, and assuming they’re happy with it, it’s great for them, and I’m happy for them, and good on Royal Lifesaving Australia, which appears to be behind the deal.

However, it really makes me wonder whether they’re only getting this because, as noted in the SMH article about it, their case got worldwide attention. But the Northern Territory’s Anti-Discrimination Commissioner said at the time that he didn’t think it was an isolated incident. And I doubt it’s just about accommodation, either – my guess is that this is just the tip of the iceberg that is racist attitudes throughout the Northern Territory and the rest of Australia. It’s just that most of us can pretend we’re not racist towards Aboriginal people because we rarely come into contact with anyone of indigenous descent (and that fact, in itself, speaks volumes about the problems).

As a result: every now and then we get a scandal like the one involving Alice Springs Haven Backpackers, that gets worldwide attention, the group involved gets some sort of remedy (if not from the group involved), everyone gets to feel good about standing up against racism, and that’s great.

But it doesn’t change anything.

And I’m not sure how to feel about that.

[First posted here.]

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So. On the first full sitting day of the new Labor government, we have apologised – FINALLY – to the Stolen Generations.

I have tears in my eyes just writing that, and I’m not usually the sort who tears up.

The apology was so well-crafted. I think it will make many people happy – as a first step, of course. Rudd’s speech was equally good, and moving.

Nelson’s speech, however … he emphasised “good intentions”, the “fight” over the land in the early years of European settlement, the problems “caused” by alcohol etc … far too much for my taste. Far too much for me to be able to take them seriously. Even his comment addressed to those who think that Aboriginal people get too much from the government, where he challenged them to go to a community and still tell him “I wish I’d been born here” … what does that say to people who WERE born in those communities? I think that was racist, Brendan, so very racist of you, and if you can’t see why you’re a bigger idiot than I thought.

But I am so incredibly glad that this apology has finally, finally been made. For the first time in so long, I feel optimistic about Australian politics.

[First posted here.]

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The Pandagon discussion on framing today got me thinking about exactly what it is about Howard’s Aboriginal policy announcement that annoys me so much.

There is, of course, the fact that it’s imbued with Howard’s particular politics, with which I’m not precisely enamoured. I’m not going to get into a discussion of the politics here, though, at least, not exactly. There are other people who have done that more than adequately (tigtog, for example – here, here and hereKim at Larvatus Prodeo, Andrew Bartlett, plus a number of people who picked it up overseas). I’m not going to get into a discussion about the good and the bad in Howard’s plan, because I don’t think I’m qualified to do so – and again, other people have done so – although I will say that mixed in with the good aspects of the plan are some really scary features.

But I realised today that what annoys me about Howard is his skilfulness in framing an argument – and his political solutions – so that he looks like the good guy.


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