It’s been a while since native title was in the news. But Tuesday’s Federal Court decision to grant the Noongar people native title over 200,000 square kilometres of the Perth metropolitan area has brought out some sour memories of the scaremongering during the Mabo and Wik cases, when ordinary, decent, mildly xenophobic Australians were worried that Aborigines would take away their precious quarter-acre blocks to hold corroborees on, or something. Now Philip Ruddock’s saying he can’t guarantee ocker Aussies’ll have access to their beloved beaches. What a lame attempt to distract us from the IR debate.
So why is this whole thing rubbish? Oh, so many reasons.
Firstly, all the Noongar decision found is that native title could exist. Specific areas will be considered to see whether they have actually been used by traditional owners since before settlement. In other words, no land that anyone other than Aboriginal tribes have actually found a use for in the past 200+ years will be affected.
Secondly, native title can be extinguished by any Act of Parliament. So the WA Government needn’t appeal – it can just enact an Act of Parliament to redress anything if has problems with. If Philip Ruddock wants to protect our beaches – which as AM suggested aren’t exactly threatened anyway – all he has to do is amend the Native Title Act to clarify that beaches in regular use cannot be covered by native title claims. But somehow I suspect he’d rather warn us about some nefarious Aboriginal plot to block us off from Bondi Beach than actually solve this problem – which probably doesn’t exist anyway.
Thirdly, native title has next to no value other than symbolic. I read the original Mabo decision in some detail at uni, and despite the common view that it was the most terribly dangerous piece of judicial activism, it’s really a very minimal thing. The reasoning goes something like this. The Crown’s assumption of Australia was based on the doctrine of terra nullius – that there was no prior ownership. But the court recognised that we know today that terra nullius was just plain wrong – there were existing Aboriginal communities with their own systems of ownership. Wherever title has subsequently been granted to anyone since white settlement, though, that continuing native title is superceded. If not, native title survives. It’s not exactly a radical concept to say that Aboriginal tribes owned land, or that they still do if no-one else has owned it since. Even pastoral leases extinguish native title, as was established in the aftermath of the Wik decision.
Otherwise the unused land vests in the legal entity of the Crown. Personally I find it considerably less offensive to assert that the Aborigines own it than that it belongs to Queen Elizabeth.
Native title doesn’t convey freehold title, though. It doesn’t give the same rights to traditional owners as, say, we have to our houses. They aren’t going to have much luck building fences and charging admission to visit the beach.
The sad thing about native title is that it’s basically the least we can do, legally speaking, in terms of Aboriginal land ownership. It basically recognises that where there’s an ongoing connection with the land, there’s an ongoing connection with the land. And it benefits only the Aboriginal peoples who have successfully retained that ongoing connection – that is, who’ve been least impacted by white settlement.
We could do far more to redress the historical wrongs involved in white settlement – that, even under international law at the time, the UK needed some kind of treaty in order to assume control of Australia. By comparison with the situation in New Zealand, where the (admittedly better politically organised) Maori people were given land and political rights under the Treaty of Waitangi – and although it has no strict legal effect, much of it was honoured in practice. Seats in Parliament are reserved for Maoris in NZ, whereas we’d rather deal with Aborigines who try to claim land rights primarily by demonising them.
Okay, it’s Friday afternoon… rant over; I’m going to take off my black armband now, and head to the beach. Before the Aborigines stop me.
Photo: Chris Lane