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Buckely's Chance

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Relations between Aborigines
and colonists

Aboriginal War
Friends or foes?

History Wars
Denying contestability

Black Woman and White Man
Rape or love?

Myall Creek Masscare
Causes and consequences of colonial violence

The Stolen Generations
It's not so black and white

Jimmy Govenor
Not a good fence builder

Mary Anne Bugg
Female Bushranger

Pelmuwuy
Justice or resistance?

Racism
Contemporary racism against Indigenous People

Convicts and their legacy

Convict legacy
How the past shapes the present


Convict life
Regrets and floggings

Convict crimes
Power and morality

Convict punishments
What purpose?

Larrikin Convicts
Breaking rules

Escapes
Thinking different

Convict women
Moral diversity

 

Mabo Versus Queensland (1992)

In the 1992 Mabo vs Queensland judgement, the High Court of Australia was asked to consider whether Queensland's annexation of the Torres Strait in 1879 had extinguished the land rights of the people already living there. The High Court said the annexation had not and that the same principles would apply to Britain's annexation of mainland Australia in 1770.

Although it was sold as a great victory for Indigenous people, in truth the judgement was a case of honey being poured on a turd and subsequently being sold as if it were a delicious dessert. Prior to the judgement, then prime minister Paul Keating was being pressured to implement the Labor Party’s land rights legislation which proposed,

1) Aboriginal land be held under freehold title
2) Full legal protection of Aboriginal sites
3) Aboriginal control in relation to mining on Aboriginal land
4) Access to mining royalty payments
5) Negotiated compensation for lost land.

For a variety of reasons, the implementation was difficult for Keating as it had been for his predecessor Bob Hawke. The Mabo judgment provided an easy way out because it offered Indigenous people a vastly inferior package but, due to the emotive language, it could be sold as vastly superior.

In short, the judgement said that the British government was in its legal right to invade and dispossess Indigenous Australians of their land; however, any Indigenous group that had not been dispossessed, and could prove continuous associations with the land since 1788, could have their associations recognised with a legal ‘native’ title. Loss of association included governments granting Indigenous land to others and selling it. (Under the Mabo judgement, dispossessions had been legal and no compensation needed to be paid for the Indigenous people who lost their land. ) Finally, “native” title was different from the freehold title of non-indigenous Australians in that the land had to be owned communally and could not be sold. In other words, native title involved restrictions that non-indigenous land owners were not bound by.

Even though it was a vastly inferior package to the Labor Party’s platform, it was sold with a great deal of words that seemed pro-Indigenous. As a result, it was largely accepted without scrutiny. The sales pitch started with Justice William Deane, who said Aborigines had been treated as a

"different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional lands."

It was an odd comment from a justice that had just said that the British were legally justified in invading a land, dispossessing people and selling the land without compensation to the original owners. Nevertheless, a concerted media campaign preached the message that the High Court had overturned the legal fiction of Terra Nullius (un-owned land).

For many members of the public, the acknowledgment of prior ownership was a point of morality and something to celebrate. The legal significance, however, was something that media campaigns avoided mentioning. In short, the legal significance was that, in lands that were not Terra Nullius (conquered), local laws continued to exist until new laws were passed. This process was explained in 1865 by Sir William Blackstone in his Commentaries on the Laws of England:

"Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only by finding them desert and uncultivated and peopling them from the mother country; or where, when already cultivated, they have been gained by conquest, or ceded to us in treaties. And both these rights are founded upon the law of nature, or at least upon that of nations… But in conquered or ceded countries, that have already laws of their own, the King may indeed alter and change those laws but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God as is the case of an infidel country… But there is a difference between these two species of colonies with respect to laws by which they are bound. For it hath been held, that if an uninhabited country be discovered, and planted by English subjects, all the English laws then in being, which are the birth-right of every subject, are immediately in force."(1)

It should be stressed that, irrespective of whether a land was Terra Nullius or conquered, there was no sovereignty adverse to the crown. As a result, the crown could pass any laws or take possession of any land in accordance with any laws that it chose to make. In Australia's case, the High Court decided that Australian governments had legally extinquished the laws of Indigenous land ownership every time they sold land or gave it to colonists in the form of a grant.

Paul Keating justified his backing away from his party's platform in favour of the High Court judgment by stating that if Indigenous people had title recognised via legislation, then it would be seen as a gift. However, if the title was recognised by politically appointed tribunals working in accordance with the High Court judgment, the land would be seen as something that always belonged to them. In his own words:

“When the High Court decision came down I thought, this is the crack of light one should crawl through, because this has got the truth about it; whereas they're a set of rights as distinct from a gift. You know the set of legislative land rights are a gift, whereas this was a set of rights earned by way of traditional association.”

Aside from helping Keating get out of a complex political hole, Mabo versus Queensland was useful for many environment groups that wanted to stop mining, logging or agricultural projects. Firstly, if an Indigenous group put a claim on land slated for development, the development would have to be delayed until the disputed ownership was resolved. Secondly, the restrictions imposed by native title would make it difficult for the land to be developed economically. As explained by Richie Ahmat, chairman of the Cape York Land Council:

"Wilder nullius, which is a vision that TWS (The Wilderness Society) has for indigenous homelands across northern and remote Australia, allows for black people in the landscape but in a highly restricted form. These blacks are not supposed to engage in any form of wealth creation or development. They are only allowed to pursue traditional activities. They are to eschew employment or consumption, and not participate in or be in favour of any form of industry.
If the blacks abide by the role envisioned for them, then TWS will arrange for the environmental agencies of government to provide funding programs for them to be employed as rangers and so on. If they step outside of this role, then TWS will get the government to stop the funding. Only compliance to the TWS vision of wilder nullius will receive support."

Likewise, Warren Mundine, head of NSW Native Title Services, expressed frustrations with the restrictions when he stated:

"We own a couple of billion dollars' worth of land and it means sweet bugger-all for the Aboriginal community."

An exchange between Paul Keating and a talkback caller on John Laws' 2UE morning program in 1993 provided a good illustration of the way that words were used to bluff people. The caller had perhaps taken some of the press at the time too literally and may have believed that Mabo versus Queensland had decided that Australia was stolen property and some kind of restitution was needed. This bothered him as he may of inferred he might owe something to Indigenous people. Rather than educate him that the judgement declared that the British had acquired Australia legally and the crown was the sovereign power, Keating just called him a racist:

Caller: Yes, good morning. Just a very broad question, Mr Keating, is: why does your government see the Aboriginal people as a much more equal people than the average white Australian?
Paul Keating: We don't. We see them as equal.
Caller: Well, you might say that, but all the indications are that you don't.
Paul Keating: But what's implied in your question is that you don't; you think that non-Aboriginal Australians, there ought to be discrimination in their favour against blacks.
Caller: Not... whatsoever. I... I don't say that at all. But my... myself and every person I talk to - and I'm not racist - but every person I talk to...
Paul Keating: But that's what they all say, don't they? They put these questions - they always say, "I'm not racist, but, you know, I don't believe that Aboriginal Australians ought to have a basis in equality with non-Aboriginal Australians. Well, of course, that's part of the problem.


If Keating had been honest about the true detail in what he was proposing, he would have responded with something like:

Mate, think of them as unpaid groundskeepers in your golf club. We have offered the weakest form of recognition to the tiny percentage of Aboriginal people who can prove an unbroken connection with a particular piece of land. To assess their associations, a white tribunal will pass judgment on the evidence of other white people who will claim to be acting on their behalf. Finally, if we decide their associations indeed date back to 1788, the land will have to be used in accordance with the wishes of the ultimate sovereign, the crown, which is us. We call them custodians but we are the owners and we make the rules. Don't worry about them being more equal to us, I have made sure we are more equal to them.

 

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Rebellion

John Caesare
The first

Our Ned Kelly
A story heard and considered

Eureka Massacre
Dying for liberty

Post Convicts

Federation
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White Australia Policy
From Convicts to Chinese

Gallipoli
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Simpson and his Donkey
A larrikin and a hero

Nancy Wake
A larrikin and a hero

The Depression
Australia's Greek Moment

World War 2
The eastern chapters

Cold War
The expression of transnational identities

Prime Ministers
Values and policies of Australian leaders

 

 

 

"Let no-one say the past is dead, the past is all about us and within"(Oodgeroo)