Workshop 2000: Aboriginal Policy: Failure, Reappraisal and Reform

Aboriginal Land Rights in Australia

Ray Evans

The NT Aboriginal Land Rights Act calls for periodic review and Minister John Herron commissioned the former ALP member for the NT, John Reeves QC, to carry out such a review which he presented to the Minister over 18 months ago. It marks a decisive shift in official rhetoric in that it recognised that this Act has failed to deliver any of the benefits which the Act was supposed to deliver; that nearly 50 per cent of the NT will soon be subject to the provisions of the Act; and that changes have to be made if any progress is to occur.

Reforms advocated by Reeves included dismantling of the two major Land Councils created under this Act, the Northern Lands Council, based in Darwin, and the Central Lands council, based in Alice Springs, and their replacement by 18 Regional Land Councils. Not surprisingly, these reforms were strenuously opposed by those two bodies, which being in command of large resources, were able to lobby energetically and strenuously against the Reeves reforms.

One of the themes of the history of Aboriginal policy since 1970 has been the willingness of an influential group of Liberal parliamentarians, Malcolm Fraser is the most egregious example, to have their thinking determined by the left-wing of the ALP on these issues. And it is a matter of regret that the chairman of the House Committee on Aboriginal Affairs, Lou Lieberman, is cast in the Fraser mould. When this Committee began consideration of the Reeves report, Mr Lieberman effectively handed over the running of the inquiry to Daryl Melham, then Shadow Minister, thereby guaranteeing a report which was condemnatory of the Reeves recommendations.

We should not be surprised at such an outcome. There is not much to choose between Malcolm Fraser and the far left of the ALP these days---even to the extent of his attitude to the US alliance. What is common between the ALP Left and their allies within the Liberal Party is a well developed sense of moral superiority, and Aboriginal policy is an area which gives them the opportunity to flaunt that superiority ad nauseam, ad infinitum.

The central issue in Aboriginal Policy, from the earliest days of settlement up until the present day, has been exclusion versus inclusion. Arthur Phillip's official instructions, signed by King George III, and read out at the proclamation of his office on the 7th February 1788, included the following

You are to endeavour, by every possible means, to open an intercourse with the natives, and to conciliate their affections, enjoining all our subjects to live in amity and kindness with them. And if any of our subjects shall wantonly destroy them or give them any unnecessary interruption in the exercise of their several occupations, it is our will and pleasure that you do cause such offenders to be brought to punishment according to the degree of the offence. You will endeavour to procure an account of the numbers inhabiting the neighbourhood of the intended settlement, and report to our Secretary of State in what manner our intercourse with these people may turn out to the advantage of this colony.

Officially, therefore, Australia's aboriginal peoples were to be brought into civilised society. They were not to be enslaved, they were not to be destroyed, and their 'affections were to be conciliated'. This was the first official articulation of inclusionist policy.

I think it is now established, beyond any argument, that Paul Hasluck pursued, with very great success, an inclusionist policy during not only his highly distinguished political career, but also from his days in the 1930s as a journalist and a promoter of Aboriginal welfare. The term 'assimilation' was used to describe his policy:

The superiority of Western civilisation both on its own merit and in its established position as the way of life of the vast majority---indeed the incompatibility of civilised usage and pagan barbarism---left only two possible outcomes: separate development or assimilation.(1)

In order to turn official Aboriginal policy from 'inclusionism' to 'exclusionism', the word 'assimilation' had to be turned into a word which was impossible to defend in political debate. This was achieved with remarkable speed under Whitlam. What was extraordinary was the readiness with which the Liberal Party, under Malcolm Fraser, agreed to this profound and reactionary change in the language of policy and politics.

The significance of Aboriginal land rights was that it was the first bold step in turning away from inclusionism or assimilation, into exclusionism, or 'separate development'. (In my view the term 'separate development' is an oxymoron. 'Separate stagnation' or as the experience of the last thirty years has shown, 'separate tragedy' are more accurate terms.)

Before looking at the Blackburn judgment, the Woodward Royal commission, and NT Aboriginal Land Rights Act, Mabo, Wik, and so on, we need to look at the way in which land, within Western societies, became nothing more than just another factor of production. Western civilisation grew out of the fusion of Judaism and Greek civilisation. Fusion is perhaps a rather polite word. The story of the Roman Empire is that of a battle-ground between Judaism and the Greeks for cultural hegemony. But it was the Christians who won, and particularly in its Augustinian form, set the course of European history up until the present. The earliest battles within the Church were over circumcision and whether Christianity would remain as merely a Jewish sect or become a new and dynamic religious force within the Roman Empire. St. Paul's success as a missionary ensured the latter outcome, and in his writings we can see an end to the idea that the Temple at Jerusalem was of incommensurable value, a Holy of Holies.

Corinthians I: 3:16-17

'Know ye not that ye are the temple of God, and that the spirit of God dwelleth in you?
If any man defile the temple of god, him shall God destroy; for the temple of God is holy, which temple ye are.'

Judaism was replete with holy places. Christianity had no such places. It was probably a century before Christians had buildings which were set aside for liturgical purposes and, at some point, were presumably consecrated for those purposes. What can be consecrated can, of course, be de-consecrated, and it was noteworthy during the debates over Aboriginal spirituality which, for example, occurred during the Hawke Government's decision on Coronation Hill and Bula, that ignorance about basic Christian doctrine on the sacred and the profane was almost universal amongst politicians and journalists.

The argument which lay at the heart of the Aboriginal Land Rights Movement was this. Aborigines have a special affinity for the land and suffer first in a spiritual sense, and then in a physical sense (there is hardly any distinction in the Aboriginal mind), if they were unable to perform the ceremonies which they believed were causally connected to the production of food on the land---both vegetable and animal. To perform these ceremonies they had, at a minimum, to visit these tribal lands periodically. Within these lands were often found sacred sites, usually connected to places where the ancestral spirits emerged from deep underground, and then having traversed the landscape, re-entered into the subterranean depths. I am reminded of the marvellous exchange between Glendower and Hotspur in King Henry IV.

Glendower: I can call spirits from the vasty deep.

Hotspur: Why so can I, or so can any man;
But will they come when you do call them?

Shakespeare aside, the connection was made, at an early stage in the campaign for a unique form of title for Aboriginal land, between Aboriginal deprivation and an alleged inability to perform the ceremonies required to maintain the supply of what is now often called, admiringly, 'bush tucker'; an inability allegedly brought about by the absence of legal recognition of title to these traditional lands.

It is not that the Aborigines in question suffered from want of food. The problem in a sense was that they had very easy access to food which was of the wrong kind for their nutritional well-being. But the ceremonial life was seen as critically important to Aboriginal well-being regardless of the purposes for which it was carried out.

The crucial question is this. If it was believed that lack of title was the cause of Aboriginal deprivation, why didn't Woodward propose compulsory resumption of leaseholds where necessary, or alienation of crown land where possible, and the allocation of free-hold titles to either tribal elders as individuals, or incorporated tribal groups? Freehold is the best title to land which other Australians can hold. Why not freehold to Aborigines who could show that they performed these ceremonies as the seasons required, or would have performed them if they had not been denied access to the land?

The problem for the legislators with freehold, of course, was that it was alienable. It could be sold or it could be used as collateral for a mortgage. It was also subject to the constraints which freehold land in other parts of Australia were subject. Above all, it was a modern title. And by that I mean that modernity requires that land does not contain anything of the sacred about it. The text from Chapter 3 of Exodus, in which Moses was confronted with a bush that was burning, but was not consumed by the flames, is irrelevant to the modern mind.

Exodus 3:5

And he said, Draw not nigh hither: put off thy shoes from thy feet, for the place whereon thou standest is holy ground.

The Northern Territory Aboriginal Land Rights Act of 1976, based on Woodward's report, and passed by the Fraser Government with Minister Ian Viner in charge of the Bill, is a return to Exodus, Chapter Three.

Economic life in Australian is based on the law of property, the law of contract, and the law of tort. Statute law, of which there is now a super-abundance, seeks either to clarify common law decisions, or to reverse them in some particular aspect. For most people the most important contracts they engage in are contracts of employment, in which they receive compensation for placing themselves under the direction of an employer for a stated period of time throughout the week. These employment contracts are so heavily regulated, and so burdensome in terms of lost income, that increasingly people are entering into the workforce as contractors, not as employees.

It is important to remind ourselves in this context that, from an Aboriginal perspective, the most disastrous official decision, since the War, was the 1966 NT Cattlemen's award, handed down by a full bench of the Arbitration Commission headed by Sir Richard Kirby. This decision led to the dis-employment of many thousands of Aboriginal stockmen and the end of their participation in economic life. I cannot think of words which are sufficiently condemnatory of that decision. What is particularly outrageous is the sense of self-righteousness which permeates the judgment.

The law of property, which is our primary concern here, enables us to buy and sell, to take out mortgages, to pursue our best advantage as we see opportunity. Prior to the Industrial Revolution, agricultural land comprised the greatest part of the capital stock of a society, and more than three quarters of the population were engaged in agricultural production. Today, land, be it for agriculture, or industry or housing, is a small part of the capital stock. Our wealth, which is our capacity to earn an income, is predominantly located inside our heads, what economists call human capital. John Reeves in his paper, argues that 'knowledge and skills, unlike the land, are much more likely to provide the base for economic independence. They are much more likely to provide young Aboriginal Territorians with the ability to obtain a job and an income and to become a confident and proud member of his or her community.'

Like so many other observers, Reeves understands that the price which everyone has to pay for being part of mainstream Australia, and enjoying the blessings which such participation affords, is taking part in economic life. Paul Albrecht has stated time and time again, that every group that has come to Australia from overseas has been able, with more or less difficulty, to successfully get involved in economic life, but the Aborigines have failed to do so. The price for such exclusion is a terrible price, a price counted in suicides, in domestic violence of the most horrible kind, in drug and substance abuse, and so on.

The jobs which Reeves desires are not going to be found in remote Aboriginal communities. They are going to be, almost entirely, in the towns and cities, unless there is a resurgence in the mining and pastoral industries of the Territory, and even if there is a resurgence in those industries, there will hundreds, not thousands of jobs as a consequence.

As far as mining is concerned, it is now widely understood that the NT Aboriginal Land Rights Act has effectively suffocated the mining industry in the Territory. Reeves suggests that once the 50 per cent mark has passed that will be the end of granting process, thus leaving about half the Territory available for exploration and mineral development. However, the Commonwealth legislation will kick in at that point and the same problems will apply as operate in the other States, particularly Queensland and WA.

Justice Woodward, in his report, used the pregnant phrase 'I believe that to deny to Aborigines the right to prevent mining on their land is to deny the reality of their land rights.' What grounds, other than sacrilege, could Woodward have had for such a comment? but it was this sentence that legitimised the rent-seeking procedures through which the Aboriginal industry sought to obtain significant and on-going sums from the mining industry. That attempt has been a failure for one important reason. The rents were, almost from the very beginning, illusory. And nationwide, since the failure of the Howard Government to deliver on the ten-point plan, the decline in exploration activity on land subject to the right-to-negotiate provisions of the Commonwealth Land Rights Act has been substantial, and will continue downwards with increasing speed.

The moneys from mineral royalties to which John Reeves refers in his paper will not materialise. That is something which has yet to be understood.

To return to the law of property. In order to buy and sell property, of whatever kind, there has to be a market. We cannot borrow money against the collateral of our home, for example, if the potential lender cannot know what the home is worth. He can only know that if there is a market in real estate. Aboriginal Land is to be held as 'inalienable freehold'. Inalienable freehold is, of course, worthless. The term 'inalienable freehold' is the mother of all oxymorons, but how could Aboriginal Land be granted, based on the argument that it was the sacredness or the holiness of the land which was critical to Aboriginal well-being, if once granted it was mortgaged, or even sold, and the proceeds used to establish a business in some far away town or city, or even used for (to employ John Reeve's felicitous phrase), 'short-term consumption'.

The whole Aboriginal Land Rights movement, from Woodward in his argument for the plaintiffs in the Gove Landrights case, through to Brennan and Deane in Mabo, is exclusionist in philosophy, in intent, and in outcome. What is extraordinary is the wholehearted commitment, by the Left, to the Land Rights cause, and the ready acceptance by self-styled conservative catholics, such as Brennan and Deane, of pre-Christian, indeed anti-Christian doctrines.

John Reeves has told us that NT Land Rights has been an economic cul-de-sac for Aboriginal Territorians. In my view it has been much more than that. By creating the Land Councils who receive royalties from mining operations such as Ranger, it has established well-financed vested interests whose primary purpose is in keeping Aborigines in a state of victimhood. It is a continuing official statement to Aborigines that they can never become part of mainstream Australia, and they should never seek to try to do so.

Mabo and Wik and the legislation which followed those High Court decisions hangs over this country as a reminder of how far our judicial and political elites have lost their moral compass. Although, strictly speaking, they do not require constitutional correction, I think they are so grave in their consequences that a constitutional referendum, which will have to be interpreted as an authoritative rebuff to the High Court, in which Mabo and Wik are overturned by the people as a whole, is essential.

In order to reach such position, it will have to become apparent that the separatist or exclusionist path which Coombs, Whitlam, Fraser, Hawke and Keating have followed, with different degrees of enthusiasm and commitment, has brought tragedy to many, many thousands of Australia's Aboriginal people. This conference is an early step in this journey.

Endnote

(1) Paul Hasluck Shades of Darkness, 1988, Melbourne University Press, page 8.