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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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The agreement was approved by the Federal Court in April, 1997. The Federal Court’s f o r m a l approval took a l m o s t an hour a s Lockhart J, in a t h e s p i a n p r o c e s s t h a t w a s l a t e r i m i t a t e d i n places much more expensive f o r a j u d i c i a l entourage to reach, invited sixty Dunghutti people to the front of the crowded courtroom to “ b e t t e r s h a r e the h i s t o r i c day”. A few hours l a t e r t h e l a n d w a s compulsorily acquired for a housing development, upon a down payment of $800,000 and a good deal more to follow.

In September, 1998 the High Court confirmed t h a t a g r a n t of freehold extinguishes native title. 21 This was one of the few points that had seemed clear since 1992, but so great was post-Wik u n c e r t a i n t y t h a t a c o n t e s t e d c a s e w a s r u n through to comfort nervous landowners.

Some settlements do not concede title in the sense of exclusive occupation, use and enjoyment. Lesser rights of access may be involved. For example, in 1998 the Federal Court rubber-stamped an agreement between the Queensland government, g r a z i e r s Alan and Karen Pedersen, and the Y a l a n j i tribe over a p a s t o r a l lease of 25,000 hectares a t M t Carbine, about 300 kilometres f r o m Cairns. It had taken three years to negotiate.

In return for a better class of lease, the Pedersens recognised the Yalanjis’ r i g h t t o oc cupy abo u t 1 pe r ce n t of th e pr oper ty and to ca mp, fi sh, hun t and

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Commonwealth, in the Federal Court. After a trial lasting 94 day s, ju dgmen t was

gi ven in fa vour of th e Common weal th. O’Loug hli n J ob ser ved :

“I do not think that the evidence of either M r s Cubillo or Mr Gunner was deliberately untruthful but... I am concerned that they have unconsciously engaged in exercises of reconstruction, based not on what they knew at the time, but on what they have convinced themselves must have happened, or what others may have told them”.

An app eal was di smis sed. Oth er uns ucc ess ful ca ses wer e br ough t in NSW by Ju dy St ubbs and Val er ie Li now. Howe ver, th e re sul ts of th ese ca ses, and th e re aso ns fo r th eir fa il ure, do no t app ear to hav e af fec te d th e cr edi t of th e move ment.

In Rubibi Community v. Western A u s t r a l i a, 26 a l i m i t e d r i g h t o f a c c e s s t o land near Broome for ceremonial purposes was recognised, again by consent. The a r e a was already an Aboriginal reserve. In a remote p a r t of the Northern Territory, an occupational title was recognised over a “phantom” town site that was surveyed in the late 1800s but then practically ignored. 27 In the absence of competing interests this claim met little resistance. The sa me app li es to Wes ter n Aus t r a li a’s co ncessi on of de ser t l ands to th e “S pin ife x Pe opl e” in Nov embe r, 20 00.

In th a t ca se th e ru bber st a m p co uld hav e be en wie ld ed in co u r t of fi ces in Mel bour ne, Sy dney or Pe rth, but Bl ack C J to ok th e opp ort uni ty fo r el abo r a t e sy mbol ism, ventu rin g in to th e de ser t to make th e co nse n t or der, as he sa t in th e

sa nd in hi s co u r t ro bes wit h l ocal elder s:

“I th ought i t woul d he lp me in my und ers tan ding of th ing s … We had th i s won derf ul ex peri en ce of si t t ing und er a t r ee fo r so me co nsi der abl e t i me and th ey wer e te achi ng me so me wor ds. It was a won derf ul commu nic a t i on”.28 The St ate re ser ved ri ght s to al l min eral s, pe tro leu m and wat er.

Bl ack C J was of f aga in in Ju ne, 20 01, he a r t on sl eeve, whe n he and hi s en tour age fl ew fr om Mel bour ne to Cap e Yor k to ra t i f y a co ncessi on to th e Kaur are g pe opl e. Kne el ing be for e th e el der s in a “h ighl y emot io nal ce remo ny”, he de cl are d th a t “i t was l ike be ing in vi ted in to a ch urch or sa nct uary ”. 29 Tha t was no t th e Fe der a l Cou rt’ s l a s t ex pens iv e pub li cit y ex erc ise. In 20 04 ano the r membe r of th e Cou r t ca rri ed th e ru bber st a m p to so me Tor re s St r a i t is la nds th a t wer e han ded ov er by th e Que ens lan d go ver nment.

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financial year, 2002-03. In 20 03 Que ens lan d aba ndon ed i t s own nat iv e t i tl e l egi sla tio n and han ded the pr obl ems bac k to th e fe der a l t r ibu nal, l eavi ng th ree qua si- ju dic ial re ci pie nts of St ate go ver nment p a t ron age on l ife te nur e, sa lar ies to t a l li ng $6 75, 000 pe r ann u m, and very l i t t le to do.

By th e en d of 20 03 th ere wer e twe nty “ t i t les by co nse nt”, in cl uding ei ght on Tor re s St r a i t is la nds, cou r t esy of th e Que ens lan d go ver nment, and two smal l a r eas in New So u t h Wal es. Most of th em wer e su bje c t to min ing and ot her pr ero g a t i ves of th e Cr own, commo n l aw ri ght s of th e pub li c, and ri ght s of ac ces s fo r S t a t e a n d local a u t h o r i t y employees. 37 No Mabo t i tl e had be en es tab li shed in So u t h Aus t r a li a, Tas mani a or Vi cto r i a.

Native t i t l e s (exclusive or non-exclusive) are not to be confused w i t h monetary payments or other a r r a n g e m e n t s entered into by p r i v a t e i n t e r e s t s under pressure of the R i g h t to Negotiate, such a s the S t r i k e r Resources Agreement (WA, August, 1997 – compensation for mineral exploration), t h e Redland Shire-Quandamooka Agreement (Queensland 1 9 9 7 – a m e r e p r o m i s e t o continue negotiations about claims on North Stradbroke Island), and the Cable Sands Agreement for beach mining in Western Australia (2001). 38 But despite the modest achievements of the M a b o doctrine (consumption of public funds aside) efforts are made from time to time to keep it, and the now seldom heard-of Native Title Tribunal, in the m e d i a. During the Western A u s t r a l i a n S t a t e e l e c t i o n l a s t February, w h e n t h e O p p o s i t i o n p a r t i e s made a n i l l - f a t e d p r o m i s e t o c h a n n e l w a t e r f r o m t h e K i m b e r l e y s t o Perth, Fred Chaney, Deputy President of the Native Title Tribunal and co-chairman of Reconciliation A u s t r a l i a, i s s u e d a w a r n i n g t h a t any such plan would have to contend w i t h many native title claims along the way. (Incidentally, the estimated cost of the visionary channel was rather less than two years’ sustenance for ATSIC.) Disillusionment Despite the devoted efforts of anthropological witnesses and some federal judges, and the dazzling versatility of cases such as D e R o s e v. S o u t h A u s t r a l i a, the returns from M a b o pale in comparison with the vast amounts of money and social energy expended on the cause. It would be interesting, albeit depressing, to know the true size of the bill for the Brennan-Deane experiment – the cost of all the lawyers, m e d i a t o r s, c u l t u r a l advisers, anthropologists, travelling allowances, court resources and so on, but i t is unlikely t h a t w e s h a l l e v e r be told. At the time of writing (late March, 2005) there are almost 500 native title cases listed in the Federal Court section of the AUSTLII website. Some are short procedural matters, others are interim (non-final) hearings, but it can safely be said that few of them were run on a shoestring budget.

N o w, a f t e r a l l t h e e x c i t e m e n t a n d e x p e n s e, a r e a l i s a t i o n i s growing t h a t M a b o was not such a wonderful c r e a t i o n a f t e r a l l. P r o f e s s o r B a r t l e t t o p e n s a chapter of his text with the gloomy prognostication: “Retreating from Mabo – Frozen R i g h t s and J u d i c i a l Denial of E q u a l i t y ”. 39 Noel Pearson h a s spoken despairingly of internecine quarrels over “the scraps of native t i t l e ”, 40 recalling not only internecine s t r i f e a t Hopevale, but also the history of Wellington Common in central-west New South Wales, the very first M a b o claim. There, in November, 2001, after eight years of disputation and negotiation, an agreement seemed to have been reached. Then a new group of claimants intervened, and it was back to the drawing board.

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the judges are now aware of it:

“[O]n occasions the evidence has more the ring of a convinced advocate than dispassionate professional … There is an obvious risk that the involvement of the ‘expert’ in the p r e p a r a t i o n [of the case] will a t least affect t h e weight [of] the evidence given … [if not its] admissibility”. 51 As the appeal of M a b o title faded, so too did support for the dysfunctional Aboriginal and Torres Strait Islanders Commission (ATSIC), whose fifteen years of life cost more than $1 billion per annum. But its habits died hard. In 2004 it allocated $85,000 of public funds to C h a i r m a n Clark’s personal legal fees. In February this year it decided to mortgage property in aid of a bankrupt housing corporation in Queensland, headed by a d a u g h t e r of sometime Deputy C h a i r m a n, R a y R o b i n s o n. A t t h e s a m e t i m e i t embarked on a n a s s e t - s t r i p p i n g exercise while a Senate inquiry kept it on life support, with salaries running at about $65,000 per week. A few weeks ago the Senate relented and passed t h e abolition bill. Subject to payment of another four months’ s a l a r i e s to i t s eighteen commissioners, ATSIC is no more.

A new beginning?

Two years af ter nat iv e t i tl e was cr eat ed a pe rci pie n t cr i t ic de scr ibe d i t as “ t oo wea k a fo r m of te nur e fo r many of th e ne eds of pr esen t day Abo ri gin es, whi ch woul d be be tte r se rve d by a st ron ger fo r m of pr opri et ary in ter es t”. 52 To ano the r wri te r i t is “r emin isc ent of Aus t r a li a’s on ly ot her Uto pia n ex peri ment – Wil li a m Lan e’s ventu re in Par agua y. … wit h mis era ble conse quen ces fo r th ose i t was mean t

to be nef i t ”.53 As Al exan der So lzh eni tsy n to ld hi s So vie t m a s t ers th i r t y years ago :

“T here ca n be no in depe nde n t ci t i zen wit hout pr iva te pr oper ty”. The a d a g e :

“Everyone’s business, no one’s business” was recently i l l u s t r a t e d in Western A u s t r a l i a, where thousands of c a t t l e on an Aboriginal grazing property near Wiluna h a d to be rescued by the S t a t e P a s t o r a l Lands Board. Only two of thirteen watering facilities were still functioning. 54 B u t d i s a p p o i n t m e n t is beginning to give way to constructive ideas of returning to normal property law. Early t h i s year a N a t i o n a l Indigenous Councillor, Warren Mundine, produced a paper suggesting a g r a d u a l change f r o m c o m m u n a l t i t l e s t o p r i v a t e property, in t h e f o r m o f long-term leases. He points out that 15 per cent of Aborigines in the Northern Territory already hold individual t i t l e s to land. He concedes t h a t communal housing o r g a n i s a t i o n s have a poor record of rent collection, a s s e t a n d debt management, and require perennial subsidies. 55 Supporting Mundine, the Indigenous Council called on State governments to r e d u c e t h e p o w e r o f c o m m u n a l e n t i t i e s “ w i t h t h e i r p r o b l e m a t i c governance” by allowing Aborigines to enjoy “ p r i v a t e ownership t h r o u g h an expanded lease system”. One S t a t e h a s already responded. On 16 M a r c h, 2 0 0 5 the Queensland Minister for Natural Resources, Mr Robertson, foreshadowed amendments to the S t a t e ’ s Aboriginal Land Act t o a u t h o r i s e t r u s t e e s t o g r a n t i n d i v i d u a l l e a s e s a n d to sell portions in urban areas to commercial interests.

Mundine’s plan was not completely out of the blue. The tectonic plates of Aboriginal politics have been shifting f o r t h e l a s t three or four years, a s Noel Pearson, P a t Dodson and others have advocated a change from welfare dependency and sy mbol ic ge stu res to pr acti cal meas ure s aga ins t al coh oli sm, dome sti c vi ol ence, ch il d abu se and dr ug add ict ion.

In Ju ne l a s t yea r Pe arso n de mo ted Ju sti ce Bre nna n’s so n, Fr ank, fr om th e l and ri ght s av ant gar de, sa yin g th a t he and ot her Mabo en thus ias t s expect Aborigines to eschew private ownership while their own relatives are “high-earning lawyers and professionals”. 56 Rec ent ly se ver al co mmu nit ies ac cept ed sp eci a l go ver nment a i d in re t u r n fo r pr omise s of se lf -he lp to i m p r ove he a l t h and ed ucat ion a l co ndi tio ns in th eir a r eas. Last December the senior j o u r n a l i s t Paul Kelly tested

the breeze and wrote:

“There is no better example of the transformation of our politics than the new position of P a t r i c k Dodson and Noel Pearson t h a t accepts m u t u a l obligation … [and acknowledges] the failure of the progressive Left’s policy agenda over a generation. … This represents probably the m o s t sweeping rethink since the 1967 referendum [on Aborigines]. The aim is to terminate passive welfare delivery and s u b s t i t u t e ‘ s h a r e d responsibility agreements’ between local communities and government”. 57 B u t Mundine’s proposal m e t i m m e d i a t e opposition from land council functionaries and other Aboriginal b u r e a u c r a t s. While the present forms of native t i t l e – s t a t u t o r y and Mabo-style – are nominally communal, they a r e really fiefdoms of an oligarchy well insulated from the poverty of their brethren.

The proliferation of these bodies under a special companies law is staggering. In June, 2002 there was a network of 2,709 Aboriginal corporations, 58 a l l d r a w i n g expenses from the public purse, more or less honestly and efficiently.

N a t u r a l l y the oligarchs are h o r r i f i e d to think t h a t t h e i r domains m a y gradually r e t u r n t o t h e n o r m a l l a w of property. The Queensland government’s signs of sympathy for a “new deal” were condemned as “appalling” by a wellknown local a c t i v i s t. However, Chaney of the Native Title Tribunal s u p p o r t s


“I have met a l o t o f Aboriginal people who would like to own t h e i r own home. That is how most Australians are able to build their security … It is unfair that Aboriginal people cannot do that too”. 59 The federal M i n i s t e r for Aboriginal A f f a i r s, Senator Vanstone, h a s also

expressed interest in a “quiet revolution” in Aboriginal affairs:

“Being land rich, but dirt poor, isn’t good enough … There’s a huge portion of [Aboriginal] land ownership and there doesn’t seem to be anywhere near enough wealth being generated”.60 She sees individual land titles for Aborigines as a “major policy area”, ripe for r e f o r m. 61

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I n t h e T e r r i t o r y t h e C o m m o n w e a l t h could a c t w i t h o u t the co-operation of t h e States, and there would be fewer land councils to contend with than elsewhere.

B u t w h a t ever sc heme is ado pte d, th ere re mains th e fu ndame ntal, ever- evaded que st ion of who is, and who is not, an “A bori gi ne”.

Freehold or leasehold?

At t h i s stage the Mundine plan envisages a leasehold system. 62 Both Mundine and the Minister have expressed reservations about tenures that would be freely alienable. However, fetters upon alienation would be somewhat at odds with the letter and spirit of private property and self-reliance. On one hand, the Minister w a n t s t o give Aborigines “the c a p a c i t y t o g e t s o m e c o m m e r c i a l benefit out of land”; on the other, she does not think that they should “necessarily [be] able to dispose of i t ”. There is a d i f f i c u l t balance to be struck between t h e integrationist desire for greater independence and the lingering separatist belief that Aborigines should not have the same freedom to deal w i t h t h e i r p r o p e r t y as other owners or lessees.

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