Nettheim, Garth --- "Editorial: Why Land Rights?" [1984] AboriginalLawB 9; (1984) 1(11) Aboriginal Law Bulletin 2

• Editorial: Why Land Rights?

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Editorial:

Why Land Rights?

by Garth Nettheim

As the Commonwealth Government moves towards enactment of national legislation for Aboriginal Land Rights, opposition to any further development of the concept is becoming more overt. Much of the opposition comes from expected sources - individuals and organizations voicing concern for resources development (mining, grazing, tourism, etc.) and politicians who share such concern. Such concern, based on economic considerations, is understandable and legitimate, and has to be an essential element in the national debate, provided that it is articulated in rational terms; when it is expressed in emotive and hysterical terms as on several recent occasions, it does the nation - and its own cause - a disservice.

The debate between the proponents and opponents of Aborigianl land rights is aimed at winning the support of opinion leaders (in the media and elsewhere), electors generally and, ultimately, politicians. It is, therefore, essential for those who support the maintenance and further development of the land rights concept to be constantly ready to articulate their argument from first principles. As Kenneth Maddock writes in his excellent new book Your land is our land: Aboriginal land rights, (Penguin, 1983), 177-178:

The tendency has been to take sides, while offering only the barest justification. In 1972, for example, Gough Whitlam announced that his party would, if elected, 'give Aborigines land rights - not just because their case is beyond argument, but because all of us as Australians are diminished while the Aborigines are denied their rightful place'. How could the case be beyond argument? Whitlam's was, of course, a pioneering and prophetic statement. It soon bore fruit in the Woodward inquiry and the Land Rights Act. But unless the principles that might justify land rights are examined, support for the Aboriginal case - or opposition to it - seems arbitrary, a matter of emotion, intuition or party policy. The bystander is left as much in the dark as by conflicting cries of 'Revolution rah!' and 'Revolution bah!'

First it is necessary to clarify what the land rights claim is. It is a claim to certain property rights, and associated rights, within the Australian legal system. It is not a claim to demolish the Australian legal system or to deny the sovereignty of the present-day Australian nation. Issues of sovereignty are quite distinct from issues of property.

Some of those who argue for Aboriginal land rights do, also, advance a claim to Aboriginal sovereignty (e.g. Coe v Commonwealth [1979] HCA 68; (1978) 52 A.L.J.R. 334; (1979) 53 A.L.J.R. 403). Such a claim is understandable as an account of history and as an instrument of political persuasion. It is also arguable as a matter of international law, though the barriers to the claim succeeding in any international forum are extraordinarily formidable, according to speakers at the November 1983 conference on Aborigines and International Law.

For the most part, however, the land rights claim has proceeded on the assumption of the sovereignty of the current Australian nation. The claim in the law courts is that pre-contact Aboriginal land rights survived the acquisition of overall sovereignty by Britain and, subsequently, Australia - the claim failed in Milirrpum v Nabalco Pty Ltd (1971) 17 F.L.R. 141 but is to be litigated further in the High Court in Mabo v Queensland. In the meantime, the failure of litigation has shifted the focus of debate to the legislative arena. The claim addressed to Parliament is that Australian law should accommodate some restoration of Aboriginal land rights as a matter of justice.

To this claim, the response of some non-Aboriginal Australians is to concede that Europeans dispossessed Aboriginals many years ago, and that his may well have been unjust, but that it can have no relevance to today's generation of Aboriginals and non-Aboriginals.

In response, supporters of the land rights claim make two major points: first, that dispossession and disturbance is not just a matter of 19th century history but continues to this day in a multitude of locations - Arnhem Land, Weipa, Aurukun, Roxby Downs, Noonkanbah, Yirrkala, and elsewhere; second, that the appalling socioeconomic position of Aboriginals generally within the Australian community is directly related to such dispossession and loss of culture and that the best starting point for improvement involves some restoration of land where possible.

Land rights legislation can operate in two ways: it can confirm the right of Aboriginal communities to continue to occupy land which they already occupy, such as traditional country from which they have not been displaced, or reserves; and it can provide for communities the right to live on land which they do not currently occupy. The former process arouses fewer fears than the latter - the latter is sometimes seen as presenting a threat of dispossession to current freeholders and leaseholders. In fact, no Australian land rights legislation currently contemplates or is likely to provide for the forced dispossession of current occupiers, and the only way in which such people may yield to Aboriginal claimants is by their willing agreement to open market purchase through the activities of the Aboriginal Development Commission or under the Aboriginal Land Rights Act, 1983 (NSW). The only possible exception to this picture is the possibility of living area excisions from pastoral leases in the Northern Territory, and even there the Federal Government has preferred to work by persuasion.

The simple fact is that most of those seeking land rights for Aboriginals are not claiming all of Australia, or a right to dispossess the dispossessors, and those who do advance such claims are not going to persuade Australian Parliaments to concede them. They want, and may get, secure title to those lands that Aboriginals currently occupy; they want, and may get, the right to ask for some unalienated Crown lands that they do not currently occupy. (By definition, and despite some impressive acreages, most of these lands are lands that non-Aboriginals have hitherto regarded as marginal or useless). In addition, they want, and may get, financial support to purchase land which may be important to particular communities for a variety of reasons - traditional or historical association, needs, compensation. In reality, the magnitude of the land rights issue is quite modest and dispossession of non-Aboriginals is not in prospect.

Mining interests, and their supporters, have a particular concern about access to minerals on Aboriginal land and denounce any suggestion of an Aboriginal veto power as bad for the economy and discriminatory against non-Aboriginal land holders who lack such veto power. However, not all landholders do lack a veto on mineral exploration and mining - in many parts of Australia there are categories of landholders or categories of minerals in respect of whom or which a veto power does exist. Furthermore, powers of Aboriginal communities to veto mining activity or to negotiate terms are likely not to be absolute - they are not absolute under the two most far-reaching Acts, the Aboriginal Land Rights (Northern Territory) Act, 1976 (Cth.) or the Pitjantjatjara Land Rights Act, 1981 (S.A.). Furthermore, the record shows that Aboriginal communities are not likely to veto mining provided that they have some effective say in where and how it takes place and a reasonable share of the profits. It was the Federal government, not the traditional owners, that blocked further uranium mining in the Northern Territory.

The final and toughest argument by those who are critical of the land rights movement is the argument of equity. Why should Aboriginals, as against non-Aboriginals, have the benefit of special provision for land ownership, and special incidents to such land ownership such as a special power in regard to resources development?

In reply one can point out that various categories of non-Aboriginals have, from time to time, been given special provision for land ownership (e.g. soldier settlement and closer settlement schemes); that many Aboriginal communities have such strong links with land as to merit restoration of that land when it is available; that Aboriginals generally have an evident need for areas of available land which can be theirs for the purposes of economic livelihood and cultural and social regeneration; and that until some such atonement is made by the broader community the original and continuing wrong of forcible dispossession and ethnocide will continue to impair community relationships within Australia and Australia's own relationships with the world community of nations.

The detail of Aboriginal land rights has to be hammered out afresh in the different parts of Australia - the Northern Territory model is inappropriate to Victoria, for example. It also has to be re-examined from time to time, as Justice Woodward contemplated. But as long as all legitimate interests are taken into account, as long as the original wrong of dispossession is not remedied by any substantial new dispossession, the granting of land rights to Aboriginal communities appears to offer the best hope of providing some justice to the original owners of the continent.