Australia has come a long way from the days of the ‘Stolen Generations’. But as Justin Frewen explains, indigenous Australians still have far to go when it comes to their struggle for land rights
“The land is my backbone. I only stand straight, happy, proud and not ashamed about my colour because I still have land. The land is the art. I can paint, dance, create and sing as my ancestors did before me. My people recorded these things about our land this way, so that I and all others like me may do the same. I think of land as the history of my nation. It tells us how we came into being and what system we must live ... My land is my foundation ... Without land I am nothing.” – Galarrwuy Yunupingu
On 13 February 2008, Australia’s Prime Minister Kevin Rudd read out his apology to the Federal Parliament for the acts of his forebears in enabling and implementing the policy that is best known today as the ‘Stolen Generations’.
Although indigenous children were removed from their families from the earliest days of colonial settlement in Australia, the term ‘Stolen Generations’ primarily refers to the official and legally sanctioned Australian government policy between 1909 and 1969, which legislated for the forcible removal of Aboriginal children from their parents. This policy was not limited only to state bodies, as churches and welfare groups all participated in this heinous practice.
Rudd’s apology was rightly seen as a significant breakthrough on the part of the Australian state in coming to terms with and accepting its responsibility for the brutal, if not genocidal, treatment of indigenous Australians since the colonisation of the country. Surely now the way has been paved to enable the indigenous population to share in the wealth of Australia.
As Patrick Dodson, former chair of the Council for Aboriginal Reconciliation, stated: “After this moment Australia can be imagined as a different place, a place where Aboriginal citizens no longer live in third world conditions.”
However, while the apology was unquestionably a step forward from the stonewalling and refusal of the previous Howard administration to even consider such an action, there are signs that further progress will still be a hard struggle.
An example of the road that remains to be travelled can be seen in the peremptory rejection of the Aboriginals’ argument that the date for Australia National Day was a “festering sore”, given its commemoration of the onset of European colonisation of the continent, and thus effectively the exclusion of indigenous peoples.
But arguably the most important issue for Australia’s indigenous population is the question of ownership of the lands they have occupied for over 60,000 years.
In economic terms, ownership of their own land could potentially prove highly beneficial for indigenous people in tackling the problems that plague their communities. Compared to non-indigenous Australians, Aboriginals live 20-21 fewer years, experience a three- to five-times higher childhood mortality rate, are 12 times more at risk of infectious diseases and more than twice as likely to be unemployed.
Land is also of crucial significance to the indigenous population in terms of their social and cultural identity. The Gagudju Elder, Big Bill Neidjie, eloquently expresses this intrinsic connection between indigenous identity and their ancestral lands: “I feel with my body. Feeling all these trees, all this country. When this blow you can feel it. Same for country... you feel it, you can look, but feeling... that make you.”
Whereas land for the Aboriginals has served as the “source of social, spiritual and legal arrangements” founded on the duties of “reciprocity and custodianship”, non-Indigenous people have viewed land solely in terms of property. For them it is regarded as a culturally vacant space, and thence free for rampant and unchecked exploitation – whether to access commercially valuable minerals or to graze their cattle and sheep.
Given the initial military and later political dominance of non-Indigenous Australians, their concept of land became the accepted legal one in the burgeoning nation, creating a situation which to this day continues to work greatly to the detriment of Australia’s indigenous inhabitants.
The struggle by Aboriginals and other indigenous people to have their native title to land recognised by the Australian legal system has therefore been a long and difficult one. Despite being the continent’s original inhabitants, only 30 per cent of indigenous households own their own land, against 70 per cent of non-indigenous Australians.
However, the 1992 Mabo land case ruling did appear to herald a new dawn in this respect, when it recognised native title and the right of indigenous Australians to their traditional lands. But in order for this recognition to apply, Aboriginals were obliged to prove a “continuing association with the land and that no explicit act of the government, federal or State, has extinguished that title.”
Prior to this ruling, colonial Australian law had operated according to the concept that with the “acquisition of sovereignty came ownership of all the land”, thus leaving no room for the legal system to “recognise pre-existing indigenous law through the medium of native title.”
However, what the common law system gave with one hand it took back with the other. While native title had been acknowledged, the principle of ‘extinguishment’ was also elaborated.
Extinguishment served to limit or qualify the extent to which native title might be legally recognised. Under this principle, if the British Crown had undertaken any act that was either wholly or partially inconsistent with native title, the right of the indigenous people to their land was effectively removed.
Land rights claims could also be extinguished if the courts judge that the indigenous people had lost their connection with the land as a result of ceasing to acknowledge the local laws and customs. Therefore, according to Lisa Strelein, the Mabo judgement was effectively “compromised”, resulting as it did in “recognition and protection of native title... [being] afforded by the Australian law on its own terms on the basis of convenience.”
A later case in 1996, Wik, considered the issue of whether official leasehold grants and pastoral leases in the north of Queensland had effectively extinguished native title. The High Court ruling that they did not automatically negate the claims of native title appeared to provide a broad opportunity for Aboriginals to claim ancestral land throughout Australia.
However, despite this ruling being merely a common sense one that would in fact apply to land owned by both non-indigenous and indigenous Australians alike, as Justice Kirby argued, it provoked a sizeable backlash on the part of the mining sector, landowners, farmers and conservative politicians. Consequently, the Howard administration pushed through the Native Title Amendment Act in 1998, with the express intention of further circumscribing the potential for indigenous land rights claims.
The obstacles facing indigenous peoples in advancing their territorial claims can most clearly be seen in northern Victoria, where the Yorta Yorta people have staked a claim for the lands they had continuously occupied since the arrival of Captain Cook.
In 1998, Judge Olney of the Federal Court rejected their claim, ruling that the “tide of history had washed away any real acknowledgement by the Yorta Yorta of their traditional laws and customs”. In 2002, the High Court upheld his judgement, as they concurred with the favouring of European written documentary evidence over oral indigenous history and tradition.
Ironically, at the same time as non-Indigenous Australian society has been putting pressure on Aboriginal people to more effectively assimilate, they are being punished for allegedly failing to safeguard their historical linkages with their ancestral lands.
This ruling has had a seriously chilling effect on native title aspirations, as indigenous claimants are obliged to “assume the entire onus of proof, without the presumption of continuity” for their rights to be recognised. Non-indigenous political, economic and legal frameworks will therefore continue to have an ‘imperialistic’ effect on the sovereignty of the indigenous population and their efforts to maintain their lengthy historical heritage and independent identity.
In effect, the indigenous community faces a double colonisation and dispossession. Firstly, their lands were seized from them unjustly and by force over a brutal period in their history. Now, in order to retrieve some of the lands they lost, they are obliged to return to the courts of the civilisation that dispossessed them in the first place.
This situation has an exhausting effect on indigenous leaders and communities as they must engage in extensive efforts to furnish ‘proof of claim’ to a highly exacting non-indigenous legal system.
Most importantly, the question needs to be asked as to whether the Australian legal system can ever effectively accommodate the needs and aspirations of the indigenous population with respect to their land rights.
Given the history of native title in Australia, it is difficult to see how the indigenous land rights question can ever be truly respected through the current legal system. Rather, what is required is a genuine acknowledgement on the part of the non-indigenous population of the wrongs that have been visited upon the indigenous community, accompanied by a genuine desire to undertake substantive economic, political and social measures to redress the inequalities that have occurred as a result.
Through the restoration of their lands, the indigenous population of Australia will have the possibility of devising their own independent economic and political strategies and, even more significantly, preserve and continue their cultural history as they have done for the previous 60,000 years.
Failure to adopt this approach could result in the end of history for one of the world’s oldest living cultures, and a tragic loss for all of humankind.
