Bennelong Society Conference 2003:
An Indigenous Future? Challenges and Opportunities

Land Rights---A Barrier to Indigenous Progress

Ray Evans

A good place to begin this paper is with Noel Pearson's comments published on June 4 last in The Australian. He was speaking in Alice Springs on the 11th anniversary of the High Court's Mabo judgment. He said the High Court had reduced native title to a lesser form of ownership, stripped it of economic meaning or benefit, and failed to give force to the 'largeness of spirit' that underpinned the Mabo ruling. By implication he was referring to the Yorta-Yorta and Miriuwung-Gajerrong judgments.

It matters not whether it is an English lord slaughtering innocent fowls on his estate, or whether it is an Australian Aborigine standing on one leg in the sunset on his father's ancient homelands---the title is the same.

He went on in similar vein, giving a serve both to Aboriginal leaders in general, and to the High Court in particular. His comments, regrettably, made no contribution to improving anyone's understanding of the Mabo mess, or the place which Land Rights has in the general scheme of Aboriginal degradation and despair which Pearson has, to his great credit, done so much to bring to the attention of the public generally, and to the Prime Minister in particular.

Throughout his spectacular career, Noel Pearson has displayed a continuing ambivalence about the causes of Aboriginal morbidity. He condemns the drunkenness, the violence, the child abuse. He condemns the 30 years of mendicancy which has wrought such dreadful havoc throughout Aboriginal society. He urges his fellow Aborigines to claim for themselves the independence which freedom from handouts brings. But on Land Rights, which was justified on the grounds of bringing religious security to Aborigines who needed to carry out their rituals and ceremonies at particular places and at particular times, and to assist in helping Aborigines who wished to maintain a traditional lifestyle to do so, Pearson has merely continued on in the familiar rent-seeking tradition, complaining that the rents which were supposed to flow to native title holders have not eventuated.

The campaign for Aboriginal Land Rights, which can be traced back to the 1930s, but took off during the 1960s; was a campaign based on the spiritual links which connected the Aborigine to the land on which he grew up.

In recent months, Pastor Paul Albrecht has been preparing lecture notes for the course he is currently giving to students at the Luther Seminary in Adelaide. This material summarises his reflections on his life's work in Central Australia, and inevitably many things which he has written in the past have been reworked to fit into the perspective which the passage of time allows. I do hope that these lecture notes will be worked up into a book, but if some one was in a position to give to the Prime Minister a concise summary of the nature of the impasse we now face in aboriginal policy, these lecture notes provide exactly what he should read.

Much is made of the Aborigines' attachment to their land, and of their need to be on their land for their well-being. There can be no doubt of the importance the more traditional Aborigines still attach to their land. However, much of what is said on this subject gives the impression that the Aborigines' attachment to their land is genetic---something they were born with, something they have even when they are brought up in an Australian urban setting, without any knowledge of their own language, and without any in-depth knowledge of the mythology relating to their land.

The Aborigines' attachment to their land has nothing to do with genetics, but everything to do with learning, and the subsequent internalisation of the knowledge that has been passed on. Aborigines were/are animists, believing that the supernatural beings (also known as totemic ancestors) who were active at the dawn of time, are still to be found in the land they shaped and fashioned. They also reside in its flora and fauna, in the natural phenomena like thunder and lighting, in the sun, moon and stars, and in the humans to whom they gave birth. It is these same supernatural beings residing in the land and in the people of that land that gives the Aborigines their unique attachment to their land, and their sense of oneness with the land. While our relationship with land can be described as an 'I--It' relationship, theirs is an 'I--Thou' relationship. This relationship is taught by the adults and initially learnt informally by the children. Then after initiation comes the more formal and in-depth instruction. Men who are prepared to apply themselves to the rigours of learning, and I might add, are prepared to accept the physical pain which is often inflicted as a part of the teaching process, are eventually taught all the knowledge pertaining to their personal totem, and to the totems of their land.

The individual's identification with his own supernatural being (totem), is complete, even transcending the time frame between the pre-historical creative period when the ancestral spirit beings were active, and the present. I remember a man telling me the story of his supernatural being, a certain snake. 'He came from this place and travelled north,' he said. 'Then I went under ground and came up at this place. Here he saw this high hill and named it. Then I travelled on.' This person's identification with his supernatural being was complete in every sense.

The campaign for Aboriginal Land Rights was replete with religious language. 'The Earth---Our Mother', a slogan plucked from the Environmentalism-Feminist stable, was one which was picked up by completely urbanised aboriginal leaders and their minders, and was widely employed. Given the chattel status of women in traditional Aboriginal society, there was an element of irony in that slogan.

The religious base of the land rights campaign was obviously irreconcilable with the rent-seeking activities that helped to finance it. It is noteworthy that A E Woodward, having been appointed by Prime Minister Whitlam in February 1973 to advise on how best to overturn the Blackburn judgment of 1971, in his first report of July 1973 commented at length on the relationship between Aborigine and land in very similar terms to the observations which Paul Albrecht has made above. For example,

45. The spiritual connection between a clan and its land involves both rights and duties. The rights are to the unrestricted use of its natural products; the duties are of a ceremonial kind---to tend the land by the performance of ritual dances, songs and ceremonies at proper times and places.

Woodward then considered a 'method of allocation ... which would give land to the traditional land-holding groups... Such a system has been supported by most anthropologists who have responded to my request for information and opinions' (para 111).

He then spent the next seven paragraphs outlining the difficulties which would attend such an allocation. In para 119 he stated 'However, inalienable communal title is quite basic to the Aboriginal system and so seems to provide the only possible way of dealing with the reserve lands in the NT today.'

The Land Councils which were subsequently established by the Commonwealth NT Aboriginal Land Rights Act of 1976 as the focus of administration, paid no regard whatsoever to the realities of traditional Aboriginal religious belief and practice in the NT. Further, the Land Councils needed revenue streams that were off-budget if they were to be politically sustainable. The mining industry was therefore assigned the burden of providing that income stream through the allocation of royalties. The Ranger Mine, for example, has provided many millions to the Northern Land Council since its establishment. However, the early players in what Noel Person described on June 4 last as 'a second rate native title legal and consulting industry' greatly overestimated the degree to which rents could be extracted from the mining industry, but more importantly, from the exploration industry.

The basic idea was that because the land was sacred to the traditional aborigines, their agreement was essential before any exploration activity could be carried out on the land. The bodies which would decide these matters were the Northern Land Council and the Central Land Council, and to them, predictably, money was more important than sanctity. As Paul Albrecht has argued, the officials of the Land Councils were very far removed from the knowledge and concerns of the senior law men of traditional Aboriginal society. The agreements which the Land Council lawyers put before exploration companies as the precondition for allowing exploration to proceed usually included a clause which stipulated that in the event of any commercial discovery, the terms under which mining would be allowed would have to be negotiated afresh with the Land Councils, before permission to mine would be granted.

This stipulation meant in practice that if a commercial discovery was made, the Land Council would reap the benefits and the mining company would underwrite the bank loan. Under these circumstances exploration on land requiring these permits dwindled and only one new mining project on Aboriginal Land in the NT, the Tanami Gold Project, has commenced since 1978.

A very recent example of the rent-seeking built into the NT Aboriginal Land Rights Act of 1976 comes from the Central Coast Herald of 27 August 2003.

Norman Fry, CEO of the NLC said that 'Negotiations were progressing with Woodside for an equity share in the pipeline which would traverse Aboriginal freehold land.

'It's time that we as Aboriginal people started to take a greater participation in the equity of all the economy that is in the Northern Territory'.

It may be useful at this point to introduce an American description of political life which illustrates the Land Rights situation. It is known as the Baptist-Bootlegger syndrome and it comes from the days of prohibition. The Baptists, as a matter of strong religious and moral conviction, were opposed to alcohol, and with their allies in the temperance movement imposed prohibition on the US from 1920 until 1933. The bootleggers were their invisible, silent, but grateful partners. They benefited mightily from prohibition. The Kennedy family fortune was one of many that was built on prohibition. The politicians who presided over the informal partnership would receive the brown paper bags from the Bootleggers on a Sunday morning and discuss whatever activities were necessary to maintain the status quo, and after church on the same Sunday they would reassure the Baptists, with complete sincerity, that they were solid for prohibition.

The difference between the politics of land rights and the politics of prohibition, is that the custodians of the ceremonies and the rituals, the senior men who knew the songs, the stories and the sacred words which gave life to world around them, were shut out from the political world by their part-Aboriginal rivals. The rent-seekers established a complete dominance in the aboriginal industry which lived, and lives, off the religious aura which became attached to all things aboriginal, however remote they were from the totemic sites of Central and Northern Australia.

A grant of land title to Aborigines based on religious reasons, can only properly be vested in the senior men of the clan who are the 'high priests', to use biblical language, in the religious hierarchy of the clan. There is of course no distinction between the secular and the sacred in the traditional aboriginal world. The religious hierarchy is the hierarchy. Economic life is completely dependent upon the proper observance of ritual, ceremony, and the utterance of the secret words of the supernatural beings who came out of the ground, or down from the sky, to perform their creative and life-giving works. But to introduce institutions such as the Land Councils, which are essentially sheltered workshops and power bases for the Left, as religious intermediaries like church synods and ecclesiastical bureaucracies, is a European imposition of farcical, albeit tragic, proportions.

Although the religious argument was the primary driver in the Land Rights movement, other arguments were slipped into the debate, manifested notably in the Indigenous Land Fund Act of 1995, which sets aside public finds for the acquisition of land for aborigines who would not succeed under the Commonwealth Native title Act. I quote from the blurb on the ILF's website.

Why was the Land Fund established?

The Land Fund was set up as part two of the Commonwealth's response to the High Court's historic native title decision in the Mabo case in 1992. Part one was the introduction of native title legislation in 1993.

The Government recognised, however, that the majority of Indigenous people had been dispossessed and would be unable to regain ownership and control of their land through native title processes.

The Land Fund was established to help address that dispossession and provide cultural, social, environmental and economic benefits for Indigenous people.

The unspoken justification for the ILF is what Pastor Albrecht calls the genetic theory of attachment to land, and it is this theory which is a serious stumbling block to aboriginal progress.

The implication is clear in the language of the Indigenous Land Fund legislation. Because of dispossession, Aborigines, no matter how attenuated their genetic inheritance, have lost something of great value. Because they no longer have the knowledge, the songs, the secret words which give meaning and purpose and supernatural support for their lives as hunter-gatherers and which connected them to the land where their totemic ancestors moved and created the natural world, and continue to exercise, through the Aborigines themselves, their creative powers. And therefore the appropriate form of compensation is land of some kind, from somewhere, which can be bought on the open market by the Indigenous Land Corporation. The ILF, and its twin brother the Indigenous Land Corporation, the ILC, are egregious burdens on the taxpayer and are a snare and delusion to Aborigines. They should be wound up, the legislation repealed, and the moneys accumulated used to fund policies which will enable the rising generation of Aboriginal children and young people to acquire for themselves the human capital which they will need to succeed in mainstream Australian life.

In his Report, John Reeves QC famously described Land Rights in the NT as a cul de sac. He was being polite. As soon as Land Rights is stripped of its religious base, it creates the illusion that title to land is the road to prosperity. Noel Pearson used language which reinforced this fantasy in his Mabo commemorative speech. In it he replaces the truth with fantasy and the truth is that unless Aboriginal people are able to read and write in English; unless they can do basic arithmetic; unless they learn habits of punctuality and reliability which are competitive with other Australians; they will not, except for the star footballers and the gifted painters, be able to participate in the mainstream work force. And that is the sine qua non of finding self-respect and escaping from despair, suicide, criminality and early death.

Another issue directly connected with the problems which Aborigines have in participating in Australian economic life is that they are, in large measure, locked out of the workforce by the arbitral tribunals. This was demonstrated, powerfully and tragically, by the decision of the Aribtration Commission in 1966 to disemploy virtually all of the Aboriginal stockmen in the NT through their judgment in the NT Stockmen's case.

In modern life, land is not sacred, it is a factor of production which is less and less important in economic activity. The rents from land are usually no better than bank interest, and often not even that. In terms of market value, most of the land in Australia is worthless. The industries of outback Australia are the mining and pastoral industries, and tourism. The pastoral industry depends for its survival on the relative prices of meat and oil. If the world price of meat is high, and the world price of oil is low, then there is money in cattle. Contrariwise, there isn't, and that is the position at the moment. It is impossible to imagine the pastoral industry becoming a big employer, again, of Aborigines. If the exploration industry is locked out of exploring on Aboriginal land, then there will be no new mines on half of the land area of the NT. That is the story of the NT Land Rights Act. And the story of the Commonwealth Native Title Act is even more ludicrous. Under that legislation registered native title claimants have rights to negotiate about exploration and mining on the land which they claim. The right to negotiate means rent-seeking rights. But the rents aren't there, so the whole absurd 'second rate, native title and consulting industry,' to quote Noel Pearson, is looking for pots of gold at the end of the rainbow.

These fantasy pots of gold, nonetheless, are great disincentives to do anything about joining mainstream Australia in the workplace.

Where do we now stand in all of this mess following the High Court decision in Yorta Yorta? Yorta Yorta went before Justice Olney of the Federal Court who found against the claimants. It then went to a Full Bench on appeal where the appellants lost 2--1, Branson & Katz JJ, the majority, and Black CJ the dissentient. It then went to the High Court where the appellants lost again 5--2, Gleeson CJ, Gummow & Hayne JJ in a joint judgment, McHugh J and Callinan J separately, ruling against the appellants, and Kirby & Gaudron JJ, jointly for the appellants.

Having read the Yorta Yorta judgements several times, and extremely conscious of my limitations as non-lawyer, my view is that Justice Callinan provides the best summary of the situation. I therefore quote from his judgment.

It seems to me that the critical elements of traditional laws and customs and 'rights and interests' in the sense and context in which the words are used in s 223 are these. The rights and interests must be definable with sufficient certainty to enable them to be enforced by the common law They must, for the same reason, be held in relation to defined land. For their enjoyment a physical presence is essential. This is so, because, if physical presence were not a necessary component of the right or interest, then the right or interest could be enjoyed elsewhere: physical occupation, presence or possession of the land would not then be essential for the observance, participation in, or enjoyment of the right in question. The Act is concerned with title, that is title to land, and the bundle of rights and interests attaching to, or arising out of that title. The definition of the rights must be found in the traditional laws or customs. Tradition requires a high degree of continuity. It also involves intergenerational transmission, acknowledgment and observance. The traditional laws and customs to which the rights and interests owe their existence must be ones which were in existence on first non-indigenous settlement, in 1788, because it was at that time that the sovereign radical title was assumed, and upon which the native title became a burden. And it is those traditional laws and customs which must have continued (albeit that they may have evolved, a matter which I will discuss later) in order to give real content to the rights and interests currently asserted. It follows that in order for native title to survive (absent extinguishment), and be the subject of a determination under the Act, there must have been, in 1788, a recognisable group exercising identifiable relevant traditional laws and customs, themselves reasonably certain, on and relating to defined land, involving physical presence on it, and continuity of these, until, and at the time of the determination.

Section 233, to which Callinan refers is the pivotal section of the Commonwealth Native Title Act which describes in three paragraphs what is meant by 'native title'. A large part of the argument in that case was about the meaning and implications of that section of the NTA.

What this means therefore is that unless there is a change in the legislation, or a change in the view of the High Court, it will be extremely difficult to prove native title except in areas of central and northern Australia where it is still possible to find something like the continuity which Callinan described. But that continuity is vanishing very quickly as the old men die, and the young men also are dying, in their youth, not knowing the secrets which the old men have taken to their graves.

According to the Native Title Tribunal's website, 31 declarations have been made that Native Title, according to the Commonwealth Act, exist. Of those 31, 26 have been consent determinations. In the NT, as is well known, despite Ian Viner's ministerial assurances that only about 8 per cent of the NT would be claimed under his legislation, nearly half the Territory is now Aboriginal Land under the 1976 Act.

Where do we go from here?

The gravamen of my argument in this paper is that the Land Rights movement and its political success beginning with the NT Land Rights Act of 1976 has been an important, perhaps even central, pillar of the separatist fantasy which has dominated Aboriginal policy since the 1970s. This policy has led to the present appalling and tragic condition of Aboriginal life in many parts of Australia. Speaking in a geographic sense the correlation between successful separatism, be it imposed through financial chains, or encouraged through rhetoric or the prospects of success in rent-seeking, and social morbidity is, in my view, now beyond argument.

As the Rousseauvian fantasies in the minds of the Left are punctured by increasing exposure to reality, it is important to have out in front of the debate what has to be done to begin the difficult journey back to the ambition which Austin Gough described not long before his untimely death.

For me, reconciliation will be a reality when I can keep an appointment with an Aboriginal dentist in the morning, and then in the afternoon travel to Sydney in a Boeing 767 flown by an Aboriginal captain, to attend the Sydney Piano competition where the Australian contestant in the top six will be an Aboriginal pianist, trained perhaps, in Bologna.[1]

Land rights is a major obstacle to realising this ambition and it follows that the legislation prescribing these rights should be repealed. Issues of compensation, and the constitutional requirement relating to just compensation will arise, and that is a large topic, well beyond my capacities to undertake. But it is worth noting that it is the veto-exercising powers attached to the land rights procedures which provide the rent-seeking opportunities which keep so many solicitors and barristers employed. In my view such powers, prescribed by statute, can be repealed by statute without implying a right to compensation. The most important example in the history of Australian rent-seeking were the tariffs which began with the 1902 Commonwealth Tariff Act. We have now proceeded a long way down the path of winding down the protectionist burden and no one has suggested that claims of compensation arising from Section 51:31 of the constitution would be available to manufacturers who faced increasing competition from imports as a consequence.

In the NT, Aboriginal Land will, in my view, have to be converted to normal freehold, and determining who will receive the title deeds will probably be a long drawn out political process. But certainly not an impossible one.

To repeal these land rights statutes today seems beyond the realms of political possibility. But it is reality, not fantasy, which in the end shapes political possibility and it may not be too long before an Aboriginal successor to Noel Pearson decides to seek to free his or her fellow Aborigines from the chains of fantasy, European fantasy, which we have imposed upon them.

When that happens it will be well within the realms of political possibility to escape from the dangerous and deadly nonsense which has wrought so much tragedy to Aboriginal people, and which has caused considerable economic damage to Australia.

Reference

[1] Paper delivered to the Galations Group Workshop, Melbourne, 20 March 1997. 7