The demise of terra nullius through Native Title

The High Court opened up a very large can of worms when it determined (in the Mabo case in 1992) that the Torres Strait Islanders (TSI) and, by implication, the Aborigines, had native title rights under common law. This did not help to contribute land to an Aboriginal or TSI nation. A native title right refers simply to a residual right to share in the use of land, but only in a customary way. Under the High Court’s later determination (in the Wik case in 1996), the rights of the Aboriginal community are subordinate to that of the lessee.

In the Mabo case, the Court said: “Where a clan or group has continued to acknowledge the laws and … to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence”.  Native title refers to the common law rights of access and use of traditional land by Aboriginal and Torres Strait Islander peoples. The rights include hunting, gathering, fishing, ceremonies, and just living.

The High Court thus put away for good that useful argument favoured by settlers and Australian jurists that Australia had been an empty land (‘terra nullius’) when occupied by Britain, contrary to all the evidence against that view.

The Court, by finding that the indigenes of Australia had indeed been in possession of their lands, brought the law in relation to Aboriginal land rights into line with current standards of justice. As the eminent historian Prof. Henry Reynolds said, “Terra nullius was out of step with international standards of human rights, on the one hand, and with fundamental values of common law, on the other …”. Mr. Justice Deane of the High Court (subsequently Governor-General of Australia in the late 1990s) remarked back in 1985 that “The common law of this land has not reached the stage of retreat from injustice”, in relation to the nation’s recognition of native title.

However, justice did arrive at last — at least, in the legal realm. In the mid 1990s, the High Court again upset the conservatives, the racists, and sundry fellow travellers. The resulting outbursts were most illuminative, displaying a range of bitter and irrational assertions, suggesting that professed beliefs in law and justice by many in influential positions (including parts of the media) are not deeply held. As Thomas Carlyle said “Can there be a more horrible object in existence than an eloquent man not speaking the truth?”

The High Court, by a majority decision (in the Wik case), held that a pastoral lease did not necessarily extinguish native title. In some cases, some native title rights can survive the grant of a lease. However, in any conflict between the pastoralist’s rights and native title rights, the former rights prevail.

Reportedly, the decision took into account an official policy dictated from the UK in 1848 that the grant of a pastoral lease gave “… only an exclusive right of pasturage for their cattle and of cultivating such land as they may require …”, but that the lease was “… not intended to deprive the Natives of their former right to hunt over these districts, or to wander over them in search of subsistence, in the manner they have been hitherto accustomed”.

Following the Wik decision, farmers and pastoralists on Crown pastoral leases sought ‘certainty’ for themselves, by the federal government formally extinguishing native title. Certainty also means the freedom to diversify their operations beyond the terms of existing leases. This would effectively make the leases de facto freehold, independently denying any native title right. Since many of the leases are reportedly already being used for a wide range of purposes, the question is how a pastoral lease, which is surely for pasturage of cattle, allowed full scale farming (as distinct from farming for sustenance). More intriguing was the claim that certain governments had ignored the law in granting mining leases.

(The above is an extract from my book ‘Hidden Footprints of Unity.’ Is it surprising that Australian politicians and their acolytes see no need for human rights legislation? Have Mabo and Wik empowered the TSI and Aborigines in any meaningful way? Have Native Title rights been undermined by officialdom since Wik?)    

 

 

 

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