This article first appeared in Quadrant in April 2007

Aboriginal Land Rights---the Greatest Folly

Hon. Peter Howson

On January 15 last, ALP President Warren Mundine, the scourge of the Latte Left, went on the offensive on the Land Rights issue. He wants the ALP's national conference in April to embrace laws that would give Aborigines the right to buy and sell their own homes and businesses on what is now communal land. He was quoted in The Australian thus:

There can't be any confusion about this: I want us to make it clear that we are about this, that we want an economy for indigenous people.

He said the ALP had to stop focussing on the debate about indigenous 'rights', saying the State Labor governments, including NSW, had not gone far enough to change land-use laws and help Aborigines.

I don't think they went far enough in NSW ... and in Queensland the Aboriginal Land Act could be changed to open up lease holding arrangements so they can go into partnerships with private enterprise. They need to do that.

Warren Mundine was in an important sense echoing Justice Michael Kirby. In his Wik judgment Kirby wrote the following:

Before the decision of this Court in Mabo [No 2] the foundation of land law in Australia was as simple as it was clear. From the moment that the lands of Australia were successively annexed to the Crown, they became 'in law the property of the King of England'...

This doctrine, providing the ultimate source of all interests of land in Australia, was upheld by early decisions of the courts of the Australian colonies, but it was also accepted [561], affirmed [562] and reaffirmed [563] by this Court...

The principle was criticised [569]. However, from the point of view of the settlers, their descendants and successors, it was part of Australia's historical reality. From the point of view of legal theory, it had a unifying simplicity to commend it: No legally enforceable rights to land pre existing annexation and settlement. No title to land except by or under a Crown grant made out of the royal prerogative of the Sovereign in the earliest days and thereafter pursuant to enabling legislation.

Into this settled and certain world of legal theory and practicality, the decision in Mabo [No 2] intruded...

Intruded it certainly did. Mabo, of course, came 16 years after the first statutory abandonment of the principles governing the law of real property described by Kirby in Wik. Warren Mundine's plea for the right of Aborigines to become the owners of freehold titles which could then be used as part of ordinary economic life (rights which other Australians take for granted), would have become a familiar part of Australian life many years ago, if it had not been for the European socialist fantasy of communal, inalienable title, which was imposed on them, beginning with the Commonwealth's NT Aboriginal Land Rights Act of 1976.

Ever since Malcolm Fraser implemented Gough Whitlam's Aboriginal Land Rights policy with this legislation (in his first year of office), it has been consensus politics in Australia that where there has been a continuing Aboriginal presence, a pre-requisite for Aboriginal well-being and advancement was the return of land to the traditional Aboriginal custodians of that land. In order to ensure that this land, and its Aboriginal custodians, could not return to mainstream economic life, a form of title hitherto unknown in Australian law was created---communal, inalienable, freehold---a double oxymoron.

A huge amount of money has been devoted to pursuing this fantasy, and despite the growing realisation within both Commonwealth and State governments, and even with the chattering classes more generally, that the separatist policies of the last 30 years have produced degradation, misery and brutality throughout Aboriginal society on an appalling scale, no government minister has questioned the efficacy of 'Land Rights'. And the recent amendments to the NT Land Rights Act made it clear that there is no stomach within the Howard Government for meaningful reform.

The Commonwealth Native Title Act of 1993, designed to give statutory effect to the High Court's Mabo decision on June 1992, was the high water mark of this tide of Rousseauvian sentiment. It should not be forgotten that it passed through the Senate just before Xmas Eve 1993, to the cheers and emotional applause of a packed press gallery and visitors' gallery. The Keating Government also enacted the Land Fund and Indigenous Land Corporation Act (1995) which was designed to provide land for aboriginal groups who would not succeed in native title claims under the Native Title Act. The ILC receives its moneys from the Land Fund which now exceeds $1.5 billions in value.

The Government's timidity in reforming the NT Aboriginal Land Rights Act is explained by the failure of even one Aboriginal leader, up till now, to comment on the damage caused by the cargo cultism in which Land Rights occupies the central place. Even Warren Mundine, whose contribution to the debate on Aboriginal policy has been the best thing that has happened in recent decades, has not made the connection between the evils he now denounces, and their origins in Land Rights policies of the last thirty years, Mundine is arguing that freehold title would enable Aborigines to participate in the mainstream economy. That is the outcome which the framers of the Land Rights legislation were determined to forestall.

The history of the Land Rights movement, however, demonstrates that from the beginning, Land Rights was a fantasy created by the Left and pursued by them for 40 years. It was an alien dream imposed by the Left upon people born into a hunter-gatherer culture, and whose world was irrevocably changed from the moment they came into contact with Western civilisation. The Rousseauvian myth of the noble savage, so eloquently described by Roger Sandall,[1] provided the foundation upon which the Land Rights fantasy was built, and the continuing support for Land Rights by Aboriginal leaders on whom the Howard Government relies for comfort and security demonstrates the power which Rousseau continues to wield, 226 years after his death.

The Land Rights story began with the article Draft Program of Struggle against Slavery published in the official paper of the Communist Party of Australia, the Workers' Weekly of 24th September 1931.

The Struggle against Slavery is a long statement. It was one of the consequences of the massive swing to the left which the Comintern (Communist International) executed, under Stalin's orders, in 1928 and 1929. In Australia, the right wing faction of Kavanagh and Ryan was displaced as a result of the visit of a Comintern agent from the US, HM Wicks. The new, hard left leadership comprised Sharkey, Dixon and Moxon. (Wicks, interestingly, later became an FBI agent.)

In the USA the new CP leadership lost no time in calling for the establishment of a separate Negro state, and the new Australian CP leaders were not far behind in demanding a separate state for Australia's Aborigines.

The two key sections of the CPA's Draft Program of Struggle against Slavery, are as follows:

• Liquidation of all missions and so-called homes for Aborigines, as these are part of the weapons being used to exterminate the Aboriginal race by segregating the sexes and sending the young girls into slavery.
• The handing over to the Aborigines of large tracts of watered and fertile country, with towns, sea ports, railways, roads, etc, to become one or more independent Aboriginal states or republics. The handing back to the Aborigines of all Central, Northern, and North West Australia to enable the Aborigines to develop their native pursuits.

Nearly 57 years after the publication of this seminal document, the still extant Communist Party weekly, Tribune, carried on its first issue for 1988 a cover page with an imagined picture of the First Fleet at anchor in Botany Bay. Superimposed over the ships was the Aboriginal Land Rights flag with the banner headline "Sovereignty in 88".

Between 1931 and 1963 the Communist Party policy of separatism gained no traction outside CP circles. But after the Labor split of the mid-1950s and the election from Victoria of a number of fellow-travelling MPs, notably Jim Cairns and Gordon Bryant, the Left's influence began to impact upon Labor policy, and this became manifest in a spectacular way with the Gove Land Rights campaign of 1963.

In 1961 Kim Beazley and I led a parliamentary committee appointed to recommend changes to the electoral law regarding the rights of aborigines to vote. We visited 39 different Aboriginal communities and the unanimous report included the following:

The declared policy of the Commonwealth Government towards the aboriginal people is that they should gradually be integrated into the European community. Over the past five years the majority of the remaining nomads have, of their own volition, come to the settlements and missions scattered throughout the Commonwealth ... As the nomadic Aboriginal adults are moving to the settlements and missions, gradually renouncing their nomadic and semi-nomadic lives, their children attend schools where their integration commences. It was demonstrated to your committee that any policy other than integration of the Aboriginal people into one Australian society would be impracticable.

This statement was in accord with the policy articulated and administered by Paul Hasluck, described as 'assimilation', and now widely disparaged. It was articulated again at a ministerial conference in Darwin in July 1963, and supported by the Commonwealth and all State Governments, irrespective of party complexion.

The policy of assimilation means that all Aborigines and part-Aborigines will attain the same manner of living as other Australians and live as members of a single Australian community enjoying the same rights and privileges, accepting the same responsibilities, observing the same customs and influenced by the same beliefs, hopes, and loyalties as other Australians. Any special measures for Aborigines and part-Aborigines are regarded as temporary measures, not based on race, but intended to protect them from any ill effects of sudden change and to assists them to make the transition from one stage to another in such a way as will be favourable to their social, economic, and political advancement.... The whole tendency in Australia... is to eliminate laws that apply especially to the Aboriginal people.

That Hasluck's policy was producing encouraging results is evident from the description which Richard Trudgen gives us of life in Arnhem Land in the early 1970s.

The 'mission days' from the end of World War II until the early 1970s were in general a time of stability for the Yolngu. A few clans rebuilt their numbers and tried to come to grips with living in two worlds. By the mid to late 1950s, the Methodist Overseas Mission stations boasted the highest population growth in Australia and none of the diseases that later became chronic were evident. All missionaries were told they must learn the language of the people so they could work with them more effectively.

During the 1960s the level of government funding to missions increased. This allowed mission stations to use their self-generated resources to create further work opportunities for Yolngu. The many industries included saw milling, cattle, farm crops and pastures, vegetable and fruit gardens, hatcheries, fisheries, bakeries, craft and the like. Yolgnu also learnt trades as carpenters, plumbers, electricians, painters, fitters and turners, and mechanics. A trade school was set up at Yirrkala mission where potential tradesmen from along the coast came to learn technical skills. Also under mission sponsorship, many young potential leaders were sent away for a Western style education in Brisbane.[2]

Hasluck knew that participation in the mainstream economy was the sine qua non of successful assimilation and although many Aborigines were then successfully employed in the pastoral industry of northern Australia, this situation was a half-way house, and that without the basic skills of literacy and numeracy, the next generation of Aborigines would not be able to integrate into mainstream economic life.

Education for the rising generation of aborigines was only possible if their parents abandoned the nomadic lifestyle which Nugget Coombs, fresh from his governorship of the Reserve Bank and newly appointed to Chairmanship of the Aboriginal Advisory Council in 1969, was then promoting as the essential element of Aboriginal culture.

In 1962 after 30 years of seemingly completely pointless agitation and propaganda, the CP's agitation for separatism and Aboriginal self-determination and sovereignty began to dissolve the bipartisanship on assimilation. In April 1963 Minister Paul Hasluck made a statement in the House on developments at Yirrkala on the Gove Peninsula where the Swiss aluminium company, Nabalco, had been granted exploration leases with a view to investing in a bauxite project of considerable size. Hasluck's ambition with respect to the bauxite development on the Gove Peninsula was to use the project as a vehicle for assimilation. In other words, the development of this enterprise would provide a platform for employment, for education, for health services, for the Yolngu people of Arnhem Land and enable them to enter into the contemporary world at a much more rapid rate than would be possible under the existing missionary-based arrangements. Hasluck had developed a close relationship with the missions working in the Northern Territory and elsewhere in Australia, and he consulted missionary leaders continuously. The Rev C F Gribble was General Secretary of the Methodist Board of Missions, and Gribble supported Hasluck's policy and shared his hopes and ambitions, as did all the other churches with mission stations in the Territory.

In his April 1963 statement on the Gove bauxite project Hasluck remarked 'We would be blind however if we did not also recognise that the Communist Party has also seized on this issue and is assiduous in trying to misrepresent what has happened'.

Six weeks later Kim Beazley announced a major change in ALP policy on Aborigines. In May 1963 he said in the House

...it was considered on the Opposition side that there should be in the Commonwealth Parliament a revolutionary approach to the question of Aborigines in relation to reserves and that an early opportunity should be sought for the Commonwealth Parliament to declare . The time has come to create an Aboriginal title to the land of the reserves in the Northern Territory.

The Gove bauxite project became a national issue which came from nowhere and which shook the Menzies Government. The events which transformed the political stage took place at the Yirrkala Methodist Mission. The key players were the superintendent of the Mission, the Rev. Edgar Wells and his wife Ann, the school headmaster Ron Croxford and his wife Margaret, Gordon Bryant, the Labor MP for Wills since 1955 and long-time office bearer in the Aboriginal Advancement League, and Kim Beazley the Labor MP for Fremantle since 1946 and ALP spokesman on Aboriginal policy. It was this campaign, which culminated in the presentation of a petition written in Yolngu-Matha, on paper affixed to a bark painting, to the Speaker of the House of Representatives in August 1963.

The petition was drawn up in English and translated into Yolngu-Matha by Margaret Croxford, the wife of the school principal at Yirrkala, Ron Croxford. Margaret was a gifted linguist. The translation was then put before four senior men who were persuaded to sign it.

This petition, which turned out to be a huge propaganda coup for the Land Rights movement, was Kim Beazley's idea. He had come, with Gordon Bryant, to Yirrkala at the invitation of the Rev Edgar Wells, the superintendent missionary at Yirrkala. The mission had been established in 1934 by the Methodist Church and like all such missions received substantial subventions from the Commonwealth. The Rev Edgar Wells, the Mission Superintendent at Yirrkala, detested his Chairman, C F Gribble, and deeply resented any threat to the monopoly of authority which he enjoyed on the Gove Peninsula. He saw the bauxite project as a destabilising and wholly unwelcome interference.

The central issue in Aboriginal policy from 1788 till the present was whether Aborigines were to be excluded from European society or welcomed into it. As the European presence in remote Australia became manifest in missions and government settlements, the Aborigines made their own preferences quite plain. As one nomad explained on arrival at the government settlement at Hooker Creek 'It takes us all day to find and kill a kangaroo. Here you can get a can of meat from the shelf in the store. That's what we want'.

The life of a hunter-gatherer is a harsh one. Patrick Dodson's fantasy of a life spent in extended social intercourse in the shade of convenient trees, interrupted by occasional fishing and hunting is pure , perhaps picked up at Monivae College, Hamilton, where he was educated.

By 1963 the Aborigines at Yirrkala had long lost any capacity for survival as hunter-gatherers. Their ceremonial life had been an integral part of the hunter-gathering life-style. The whole structure of their economy and religion became increasingly irrelevant with the arrival of the Methodist mission in 1936 and their only possible future was the future which Hasluck had articulated and which the Mission had done so much to facilitate.

The switch to Land Rights implied, although Beazley did not comprehend it, a turning back from assimilation to an imaginary hunter-gathering past which was no longer possible. The theory underlying the Land Rights movement was a mixture of rent-seeking, proclaimed ceremonial necessity, and the illusion that wealth accrued, in the manner associated with the English aristocracy, to the land owner. Noel Pearson, a contemporary captive of the Land Rights fantasy, is fond of referring to the English lord, secure in the enjoyment of his estates and the rents which are derived from them. But Land Rights was always a prison, designed to keep Aborigines as museum exhibits of a hunter-gathering culture which no-one, who could choose an alternative, would today accept.

The two industries which relied upon access to land in Northern and Central Australia for their prosperity were mining and the pastoral industry. These industries require continuing investment and hard work to make them profitable. The aborigines who were given title to vast tracts of land under the NT Land Rights Act, or for whom pastoral leases were bought using money from the ILC, were not capable of providing the capital or the knowhow to succeed as miners or pastoralists. Instead they became mendicants, living off welfare, and at the same time tying up huge areas of land, effectively taking these thousands of square miles out of the Australian economy. The Australian cattle industry suffered a serious decline in numbers and production as a consequence. The loss of export revenue since 1976 has to be measured in the tens of billions of dollars.

The mining industry was seen by the lawyers of the Land Rights Movement which was born at Yirrkala in 1963, and grew quickly subsequently, as a major source of rents. The car stickers which adorned the Left's bumper bars in Melbourne and Sydney soon proclaimed 'Lands Rights---Not Mining'. By denying exploration access to Aboriginal Land---in contradistinction to the pastoral leases which were accessible---the lawyers and advisers, the most influential from North America, surmised that the mining industry would pay a price for access. These rents would provide a revenue stream which would fund the Land Rights enterprise. These rents pour into the Aboriginal Benefits account at the rate of $50 millions annually, and are used to fund the various Land Councils.

Whitlam abolished the missions, and brought in sit-down money which, in a generation, destroyed the lives of those who received it. AE Woodward QC, who had pleaded the appellants' case in the Gove Land rights case before Justice Richard Blackburn (Milirrpum v. Nabalco Pty. Ltd. and the Commonwealth of Australia) was appointed by Whitlam to recommend a national Land Rights policy which he did. Justice Blackburn had noted at the end of his judgment

I cannot help being especially conscious that for the plaintiffs it is a matter in which their personal feelings are involved.

After passing the NT Aboriginal Land Rights Act, Fraser got rid of the patrol officers. The missionaries were dispersed, the patrol officers were retired, the land rights lawyers moved in, and the Aborigines were left without any authority structure to provide a framework of education and training which would fit them for life in mainstream Australia.

In retrospect what is astonishing is that a bipartisan policy which had been pursued for twenty years and which was yielding visible success, was thrown away and ridiculed by both sides of politics, in the brief period 1970--1976.

Bain Attwood has written an illuminating book on the Land Rights story and in his Introduction he comments:

the research done for this book, suggests that the influence of white activists, especially on the political discourses that shaped debate about rights for Aborigines was much greater [than the part played by Aboriginal people]. At the very least. most of the principal events considered here, such as the emergence of 'land rights', cannot be explained unless the white activists' role is acknowledged.[3]

What has to be discussed now is the tragedy which has followed from pursuit of this fantasy, and the quickest road back to where we were in 1970. First, the division of the law of real property into a racially based system must go. All Australians should operate under one law of property, thus allowing Warren Mundine's plea for Aborigines to enjoy the same titles that other Australians enjoy to be realised. The Mabo judgment has been read down in Yorta Yorta but it would be of great benefit to all Australians if this High Court adventure were to be overturned by referendum. Justice Murray Wilcox's absurd judgment in the Perth Land Rights claim is an example of Maboism in extremis. We cannot afford to continue with this nonsense.

There are now tens of thousands of Aboriginal teenagers who have not received a proper education, and are illiterate and innumerate. They have to be taught to read and write, otherwise they will form a permanent underclass of unemployable welfare mendicants.

The most numerous class of recipients of Peter Costello's baby bonus are Aboriginal girls. Their babies will soon grow up. How are they to be educated?

These are difficult questions which have to be tackled as a matter of urgency. They can only be tackled successfully if we throw off thirty years of fantasy and accept that the only future for Australia's Aborigines is one of complete integration into the mainstream culture. Above all it means the capacity to hold a job.

The Land Rights fantasy and the legal structure created to impose it, has been a symbol of separatism, a continuing source of division within Australia and, worst of all, a serious barrier to the progress of Aboriginal Australians into mainstream life. It must be rejected as a great folly, embraced in a fit of gross political irresponsibility.

References

1. Roger Sandall, The Culture Cult, Westview Press, 2001.

2. Richard Trudgen, Why Warriors lie down and die, Aboriginal Resource and Development Services Inc., Darwin, 2000.

3. Bain Attwood, Rights for Aborigines, Allen & Unwin, 2003, p xiii.