Patterns of protest: native land rights and claims in Australia

POLITICAL GEOGRAPHY QUARTERLY, Vol. 6, No. 2, April 1987,171-194

Patterns of protest: native land rights and claims in Australia

DAVIU MERCER

ABSRACT. The focus of this paper is on Australia’s ‘fourth world’-the Aborigines who represent an enclaved native society. There is growing international pressure for such groups to be recognized and to he granted a range of rights, including freehold land, self-determination, mining royalties and compensation for dispossession. This international movement is outlined and then the Australian Aboriginal question is dealt with more fully. First, data are presented on the size, growth and distribution of the Aboriginal population. The land rights conflict is then summarized, and recent legislative initiatives on the part of the Commonwealth government discussed. Finally, the fate of the proposed national land rights legislation is addressed.

As Australia approaches the bicentenary of European settlement in 1988 there is mounting debate within the country concerning the past achievements, present status and historical representation of its minority population of Aborigines. While Europeans resident in Australia routinely speak of the bicentenary as a ‘celebration’, Aborigines and Aboriginal organizations are frequently openly critical of whether there is indeed anything for them to celebrate in Australia in the 1980s. The present paper focuses specifically on the contemporary Aboriginal land rights movement in Australia. This particular struggle has become the centrepiece of the movement for greater Aboriginal autonomy, and is arguably the most significant political conflict in Australia today. It is being played out at local, state, national and, indeed, intemationa~ levels; and is becoming increasingly heated as the Aboriginal ~pulation grows, and as native leaders become more sophisticated in their political strategies and negotiations with governments, pastoralists and mining interests.

This article has three main aims: first, to place the country in perspective by initially outlining recent international trends in the articulation of the rights of native peoples; second, to sketch briefly both the history of Australian Aboriginal struggle and the present status of Aborigines; and, third, to present an analysis and discussion of the spatial aspects of Australian land rights and claims. Meyrowitz (1985) has argued that one of the most dominant characteristics of our age is a growing sense of ‘placelessness’. The viewpoint presented here is that-at least where Australian Aborigines are concerned-there is little substantive evidence for this assertion. Indeed, the strengthening Aboriginal land rights movement is s~pt~atic of a passionate, spiritual attachment to place which is not easily

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172 Native land rights and claims in Australia

comprehensible in Western terms (Hiatt, 1982). A leading Australian Aboriginal spokesman-Mr Galrarrwuy Yunupingu-recently described his people’s profound relationship with the land:

For Aboriginal people there is literally no life without the land. The land is where our ancestors came from in the Dreamtime, and it is where we shall return. The land binds our fathers, ourselves and our children together. If we lose our land, we have literally lost our lives and spirits, and no amount of social welfare or compensation can ever make it up to us (quoted in Ryan, 1985: 2).

In the last decade, both in Australia and elsewhere, there has come about a significant reappraisal of the situation of native peoples at the time of, and prior to, European colonization. As the archaeological and anthropological evidence accumulates, it is clear that the traditional adjectives such as ‘primitive’, ‘unsophisticated’, ‘uncivilized’ and ‘techno- logically backward’ are inappropriate, and were originally invoked because of ignorance and the need to legitimate a range of autocratic colonizing activities (Klee, 1980; McNeely and Pitt, 1985). In The Triumph of the Nomads, for example, Blainey (1975) argues that in 1800 the Australian Aborigine was probably as well provided-for in terms of nutrition, shelter and health as the average European. It has also now been established that the first Aborigines to settle in Australia made substantial ocean-going voyages to reach the continent, and then developed a host of sophisticated technologies to control their hostile environment. These ranged from the construction of elaborate fish traps to dry country irrigation systems and the careful use of fire to create ideal conditions for game habitat, and this as long ago as 40000 years (White and O’Connell, 1982). This re-evaluation of the Aboriginal relationship to the environment and to the indigenous society and economy- whether in such markedly different milieux as Amazonia, the Canadian Arctic or Outback Australia-has, in its turn, buttressed Aboriginal claims and provided considerable ammunition for greatly invigorated contemporary land rights movements around the world.

In a recent plea for the rejuvenation of cultural geography, Coull(l980) has argued that the quest for identity and autonomy on the part of groups as diverse as those of the Moros in the Philippines, the Bretons or the Faroese represent a vigorous reaction to the ‘levelling’

of cultures that has come about in the modern world as a result of the influence of the mass media, increased mobility and the growing uniformity of technology. In many parts of the world vigorous land rights movements have sprung up among the indigenous peoples of remote regions as large-scale settlement, agricultural, mining or energy projects have suddenly encroached on their traditional tribal areas. Radical geographers, in particular, have recently demonstrated a growing interest in what has become known as the ‘Fourth World’, consisting of ‘encapsulated (or enclaved) native societies’ (Stea and Wisner, 1984: 3). By definition, this approach is in sympathy with indigenous groups, draws attention to the close parallels between native struggles in many different parts of the world, and seeks to highlight the urgency with which land rights claims should be recognized and legitimated.

In focusing then on the Australian land rights movement the present essay spans the fields of cultural and political geography and, as we argue later, is also intimately related to

economic issues. At the most fundamental level, the conflict between white European Australians and black Aborigines is, and always has been, a conflict between two diametric- ally opposed views of ‘development’. For most of its history over the last 200 years the ideology of economic development has been overwhelmingly dominant in white Australia. Nature was to be parcelled up, ‘owned’, dominated and used for profit in the pursuit of ‘progress’. For most Aborigines, on the other hand, the whole notion of subjugating nature in this way was, and still is, anathema.

DAVID MERCER 173

The international context

As we approach the final decade of the 20th century it makes less and less sense to view individual countries in isolation. Nations are becoming increasingly interdependent (Picciotto, 1983). Moreover, through such measures as trade embargoes, media penetration, and diplomatic or other negotiations, it is now possible for one or more countries to exert concerted non-military pressure on another, to encourage policy change on a range of issues, including such things as political alignments, economic cooperation, environmental protection or racial discrimination. Within this global context there is a great deal of contemporary writing and heated discussion about ‘human rights’ and ‘people’s rights’ (sometimes also called ‘group’, or ‘collective’ rights), though much of this literature is not available in the English language. The two are by no means synonymous. For example, one of the main reasons stated for the withdrawal of the United States from the United Nations Educational, Scientific and Cultural Organisation (Unesco) in 1984 was that under certain circumstances in some non-democratic countries it was possible that individual human rights could be overriden by measures taken in the name of broader ‘people’s’ rights (US State Department, 1984). The actual term ‘human rights’ has a relatively recent ancestry. It first appeared in the United States in the 1940s in documents relating to plans for postwar reorganization. But the idea itself is much older and can be traced back to such earlier political conceptions as the ‘Rights of Man’, religious pronounce- ments on ‘natural rights’ and the Rule of Law, which is the traditional term for human rights (Kamenka and Tay, 1978).

In what has since become something of a ‘classic’ statement on the subject, Unesco’s former legal adviser, Karel Vasak (1977), has proposed that we can recognize three broad ‘generations’ of rights. The first group made their appearance during the French and American revolutions and had as their main objective the protection of the individual from arbitrary state action. They require restraint on the part of the state in dealing with constraints on the individual’s liberty. Second-generation rights evolved during the Russian revolution and had their parallel in the package of ‘welfare’ rights which gradually also emerged in capitalist countries. The so-called third-generation rights, as identified by Vasak, include such contemporary notions as the right to a healthy and ecologically balanced environment, to ownership of the common heritage of mankind, and to peace and develop ment. The latter are seen as a response to increasing global interdependence, and to the recognition that international cooperation is now frequently required to safeguard the new generation of rights.

Human rights are central to the United Nations charter adopted in San Francisco in 1945. Subsequent to this the United Nations quickly set about the task of framing a Universal Declaration of Human Rights, the main objective of which was to codify a set of normative, external standards against which the performance of individual, national, legal systems could be compared. The first part of this was proclaimed by the General Assembly

in December 1948. As its name implies, it was no more than a declaration, and not a binding treaty. Some years later-in 1969-following exhaustive work on the part of the UN agency, the Human Rights Commission, the Intern&ion& Convention on the Elimination of All Forms of Racial Discrimination became effective; and seven years after that-in 1976-two further ancillary covenants came into effect. These were the Znter- national Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. Australia has ratified all three covenants: the first two in 1975 and the third in 1980. Broadly, the first and last covenants have to do with Vasak’s ‘first- generation’ rights, while the ‘second-generation’ rights are covered by the second


convention. These covenants differ from the declaration in the important sense that signatory nations agree to accept in principle the ‘firm obligations’ attending their ratification and also agree to submit regular reports to the United Nations on developments in the human rights policy arena in their country.

While neither the Declaration nor the covenants are compulsory legal codes it is undeniable that since their inception they have become extremely powerful instruments for change and legal/constitutional inspiration in many countries around the world. Moreover, the Declaration itself has spawned some 15 additional international declarations and at least 50 treaties, all dealing specifically with different aspects of human rights, so there are strong international pressures for nations to conform to what are held to be ‘contemporary standards’ in this area (Vasak, 1977).

Both the Universal Declaration and the subsequent covenants are based on the assumption that if individual rights are protected, then group (or people’s) rights are similarly covered. But as Brownlie (1985) has recently pointed out, there are at least three areas where the classic formulations fail adequately to come to terms with group rights. First, claims to positive action to maintain the cultural identity of communities are not fully addressed. This is a particular problem in cases where the group members are territorially scattered. Second, there is a failure to come to grips with the special case of indigenous rights to traditional tribal lands, a weakness that was especially highlighted by Justice Berger of Canada during the extensive deliberations of the Mackenzie Valley Pipeline Inquiry (Berger, 1976). And third, the Universal Declaration and covenants are of little guidance in the face of increasingly common claims to political and legal autonomy and self-determination on the part of many native peoples and minority groups around the world.

Accordingly, recent international initiatives have begun to focus much more directly on the specific details of the rights of native peoples. In 1982 a working group was established by the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities. Each year this working group meets in Geneva to hear submissions from indigenous people from around the world, and Australian Aborigines have always been prominent at these hearings. One of the long-term tasks of the committee is the development of ‘standards concerning the rights of indigenous populations’. All the signs are that within the next decade we are likely to witness the promulgation of a new international charter outlining the rights of indigenous people (Lucas, 1985).

In addition to United Nations’ initiatives, a number of non-government organizations and churches have also been active at the international level for at least a quarter of a century in addressing the rights of native peoples. In 1957, for example, the International Labour Organisation proclaimed Convention No. 107, focusing on Indigenous and Tribal Popula- tions, and Recommendation No. 104, concerning associated guidelines for action and imple- mentation. Whitlam (1981: 434) has described Convention No. 107 as ‘the only multi- lateral treaty ever adopted which is specifically intended to protect indigenous populations, to promote their rights, and to regulate government conduct towards them’. Land rights are a central feature of the Articles of both the Convention and the Recommendation, and it is perhaps because of this that it took 10 years of intensive domestic negotiation-between 1967 and 1977-to persuade all six Australian state governments to agree to ratification of this international Convention. For most of that time only two state premiers deferred signing the agreement. These were the leaders of the two largest resource-rich states with relatively large populations of tribal Aborigines, namely Western Australia and Queens- land. Notwithstanding these events, subsequent Commonwealth governments have deliberately chosen to accord a low priority to Convention 107, and Australia still has not ratified it. In more recent times several international gatherings of non-government

DAYID MERCER 175

org~~~~~s have adopted strong resolutions con~rn~ng discrimination against indigenous peoples, as has the Central Cornrni~~ of the World Council of Churches (Swepston and Plant, 1985).

Terra nz~ZEius and the rights of native peoples

Legal judgements provide one of the most instructive pointers to the evolution of native people’s rights, so the discussion now turns to a brief consideration of some recent international and Australian cases bearing on this issue.

In inte~tion~ law a key consideration in the current debate over indigenous rights is whether, at the time of European settlement, colonial territories are seen as having been ‘peopled’ or ‘unoccupied’, ‘conquered’ or ‘peacefully settled’ (Lumb, 1984). The term &XV nullius is ~ployed to denote lands that were deemed to be largely or exclusively unsettled at the time of European occupation. ~sto~ca~y, much of Africa and South America was viewed in this light, as was Australia. If there were small numbers of local, nomadic or semi-nomadic inhabitants this invariably had little real impact on the terra ntll(dus categorization in the 18th and 19th centuries since the indigenous societies were generally considered to be unrestrained by legal rules, to possess no social structures and to lack any real concept of land sovereignty, The situation in the United States was somewhat different in that a number of the American Indian nations concluded treaties with European countries in the 19th century, at least some of which Alfredsson (1982: 115) has described as having been ‘between equal and ~d~ndent partners’. But these were exceptional. MacBride (1977: 16) notes that:

Apart from gradual ou~a~ng of slavery and the slave trade, int~ation~ protection for people under colonial rule scarcely existed in the 19th century. They were regarded as ‘outside the law’, Indeed the main responsibility for them seems to have been to ensure their orderiy and effective subjection to colonial rule.

This characterization certainly fitted 19th-century Australia, as the early, influential judgement in the Cooper v. Stwzrt (1889) case clearly demonstrated. In this landmark case the Privy Council had to adjudicate on appeal from the Supreme Court of New South Wales as to whether a particular reservation in a Crown lands grant was valid. The specific details of the conflict need not detain us here but what is of interest is Lord Watson’s articulated distinction between:

I . * the case of a Colony acquired by conquest or cession, in which there is an ~tab~shed system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, witbout settled inhabitants or settled law, at the time when it was ~~cef~~y omexed to the British dominions (Cooper v. Stwlrt, 1889: 291; emphasis added).

In Lord Watson’s opinion the colony of New South Wales was in the latter category and the English rule of law accordingly applied from the time of first European settlement. This judgement firmly set the seal on subsequent Anglo-Saxon interpretations of the nature of European colonization of the Australian continent and similar judgements were made for other colonial lands in Africa and South America.

More recently, in the case of ~i~iwpu~ v. ~~~~~~-o~e~~e known as the Gove Land Rights case-the Supreme Court of the Northern Territory ruled that the doctrine of Aboriginal or native title to land had never been, and pres~ably never could be, a part of Australian common law (Federal Law Reports, 1970). The hearing was brought before the courts in 1968 because of the Commonwealth government’s action, &I 1963, of unilateralIy


revoking a section of the Gove Peninsula Yirrkala reserve to allow the Nabalco company to begin mining bauxite. The court’s ruling never went to appeal but it was su~equentiy criticized in the strongest terms by the Supreme Court of Canada as well as by the Australian High Court (Bartlett, 1983).

In the 1970s the International Court of Justice handed down two opinions concerning widely separate African territories which were seen as holding out considerable hope for native land claims elsewhere. The first related to Namibia and the second to the Western Sahara region. In the case of Namibia, in 1971 the International Court of Justice held that South Africa’s long-standing claims to Namibia (formerly the protectorate of South West Africa) were illegal and the UN General Assembly subsequently took over responsibility for administering the territory until independence (International Court of Justice, 1971; MacBride, 1977). Then, in 1975, the same court held that at the time of its occupation by Spain in the 19th century the Shinguitti country of the Western Sahara was not terra ntlliizxr but was inhabited by nomadic peoples, who not only had ‘a social and political organization’ but also ‘possessed rights, including some rights relating to the lands through which they migrated’ (International Court of Justice, 1975: 39).

Heartened, no doubt, by this opinion, in 1979 an Aboriginal Australian named Coe

issued an historic writ in the nation’s High Court on behalf of the Aboriginal community against the Australian and United Kingdom governments, claiming compensatory relief for dispossession of traditional native lands (Coe v. The Commonwealth of Atistralia and the Government of the United Kingdom of Great Britain and Northern Ireland, 1979). The appellant alleged wrongful proclamation of sovereignty over eastern Australia by Captain Cook in 1770, and similarly argued that for centuries prior to European conquest the Aboriginal population had evolved a complex religious, social and legal system which conferred proprietary rights to tribal lands. The statement also submitted that the British Crown acquired the Australian continent by conquest and that, as such, the colony had been wrongfully declared terra nulh. In the end the High Court held that the British proclama- tions of sovereignty were valid and unchallengable acts of state and denied the existence of an Aboriginal nation. However, in commenting on the terra nullius issue, one of the judges- J. Murphy-made sympathetic reference to

. . . the wealth of historical material to support the claim that the Aboriginal people . . had a complex social and political organisation; that their laws were settled and of great antiquity (Coe v. The Commonweaith ofAustralia , 1979; 412).

The outcome of the Coe case was ~sap~inting from the A~~~n~ perspective, though the division of judicial opinion over the tema ~zukus concept held out some faint hope that appeal

to an international judicial forum such as the World Court might be successful in the future. Also in 1979 there appeared in a weekly Australian newspaper a full-page advertisement

urging Australians to enter into a treaty-or ‘Makaratta’-with their Aboriginal population (The National Times, 15 August 1979). ‘Makaratta’ is a Northern Territory Aboriginal expression which, when roughly translated, means ‘coming together after a struggle’ (Keon-Cohen, 1981). The advertisement was placed by the Aboriginal Treaty Committee, based in that nation’s capital, Canberra, and sought to overturn what one Chief Justice of the Australian High Court has called a ‘convenient falsehood’ (Murphy, 1979: 4 12). This refers to the orthodoxy which, historically, saw Australia treated as a colony that had been ‘settled’ rather than ‘conquered’, a quite different situation from that which prevailed, for example, across the Tasman Sea, in New Zealand. That such an advertisement should appear at all after a period of almost 200 years is testimony to the unswerving

DAVIR MERCER 177

resolve of the Aboriginal people to redress what they see as past injustices. The recent r~og~tion of certain rights to A~~~~ land in the Northern Territory, South Australia,

New South Wales and Victoria represents at least a cautious acceptance of the legitimacy of Aboriginal title on the part of the Commonwealth and three state governments.

Australia and the human rights conventions

Earlier, mention was made of the fact that Australia had ratified all three of the main UN human rights conventions. This requires a further amplification. First, it needs to be stressed that in ratifying a convention nations may decide to attach one or more conditions to their endorsement of the covenant. For example, when the Australian government originally ratified the ~ternati~~ Covenant on Civil and Political Rights in 1980, the endorsement was qualified by no fewer than 13 specific rotation. These have subsequently been reduced to three under a different national government (Evans, 1985a). Second, the decision as to whether or not to become a signatory to a convention frequently hinges on whether legislative changes would be required within the country in question. And third, there is a real difficulty in the case offederated states like Australia.

Under federal constitutions there are many important issues which are not properly within the jurisdiction of the national government but are the province of subnational administrations. Examples in Australia are the matters dealt with by the three major human rights conventions under consideration here. In a recent speech to the 41st session of the United Nations Commission on Human Rights in Geneva, Senator Gareth Evans articulated the present relationship between the Australian Commonwealth and state governments on human rights issues in the following terms:

The Australian Government’s policy is that while the national Government is the appropriate standard-bearer in human rights matters, Federal measures should not infringe upon constructive developments which take place in our States, and which are consistent with our international obligations (Evans, 1985: 85).

Prior to 1972, in Australia, the accepted practice was that the national Commonwealth government would ratify no international convention until all six states had agreed to the endorsement. But, between 1972 and 1975, under the then Labor Prime Minister, E. G. Whitlam, this decentralist tradition was broken. Australia ratified the Racial Discrimination Convention in 197 5 and in the same year also enacted the Racial Discrimination Act at the Commonwealth level. This act was made binding on the states and is currently being reassessed with a view to examining the relationship between it and proposed national Aboriginal land rights legislation.

Between 1975 and 1983 Australia had a conservative Liberal government which pro- ceeded very differently. Its stated philosophy was one of ‘cooperative federalism’ (Mercer, 1985), and when it finally enacted the Human Rights Commission Act in 1981, just after

the ratification of the International Covenant on Civil and Political Rights, the legislation was not made binding on the subordinate states, nor was it accompanied by an Australian Bill of Rights which, at present, is still in draft form (Nettheim, 1984). In a federation such as that of Australia it is thus theoretically possible for one or more states to condone the violation of human and group rights in contravention of laws and international conventions ratified at the national level. In short, there is at least the possibility of considerable ‘internal’ spatial variation in human rights practices and policies. The present, federal, Labor government, under the leadership of Mr R. J. L. Hawke, has generally tended to continue the decentralist tradition of ‘cooperative federalism’ so often cited as a major historical


characteristic of the Liberal opposition party (Galligan, 1984). Before addressing this issue in closer detail with respect to Aboriginal Australians let us first assess the present status of Aborigines and sketch the broad contours of the history of Aboriginal struggle.

Aboriginal Australia

Archaeologists have now established that Aborigines have been present on the Australian continent for at least 40 000 years. For a long while the conventional wisdom was that at the time of first European contact the Aboriginal population numbered about 300 000 nomadic and semi-nomadic indigenous people, divided into some 500 linguistic and tribal groups dispersed over the entire continent (Blainey, 1975). But more recent research suggests that the actual population may well have been closer to 600 000, and that many Aborigines lived

in virtually permanent settlements (Butlin, 1983). As a consequence of deliberate slaughter on the part of European hunting parties, and also as a result of the introduction of previously

unknown diseases such as measles, influenza and smallpox, Aborigines died in their thousands, and by 1933 the population of full-bloods had plunged dramatically to around 74 000 (Lippmann, 1981). Recently, some radical Australian historians have engaged in a contentious reappraisal of Aboriginal/European contact in the early years and have begun to argue that the situation was far more ‘warlike’ on both sides than had ever been depicted by earlier historical commentators (Markus and Ricklefs, 1985). Such an interpretation tends to add weight to the ‘invasion’ theory of early settlement in Australia, mentioned above (Lester, 1985).

On looking at the declining population numbers, many people came to the superficial conclusion that the Aborigines were a ‘dying’ race, but recent demographic data have shown the population now to be rapidly on the increase (Figure 1). Even though regular censuses have been held in Australia since 1911 it was not until 1971 that questions on Aboriginality were included. The latest, 1981, census revealed a total of almost 160000 Aborigines and Torres Strait Islanders, though the Department of Aboriginal Affairs considers that this number understates the true population by about 50 000 (see Table 1). This still represents less than 2 per cent of the population of Australia.

500,000

400,000

1800 1850 1900 Years

1950 1985

FIGURE 1. The Aboriginal population, 1788 to the present (adapted from Pittock and Lippmann, 1974).

DAVID MERCER 179

TABLE 1. Aboriginal and Torres Strait Islanders by states, territories and Australian Commonwealth census (197 1,1976 and 1981) and Department of Aboriginal Affairs count (1981)

State 1971 1976 1981 1981a

Queensland New South Wales Western Australia Northern Territory Victoria South Australia Tasmania Australian Capital Territory

Total

31922 41344 44 698 71559 23873 40451 35 367 43 397 22181 26125 31351 33832 23381 23750 29088 29 305

6371 14 760 6057 15339 7299 10714 9825 11612

671 2943 2688 2793 255 828 823 648

115953 160915 159897 208485

a Department of Aboriginal Affairs Newsktter, No. 11 (n.d: Table 4). Source: ABS, Information Paper, Cat. no. 2164.0 (17 August 1982).

Table 1 clearly indicates considerable numerical variation from region to region. Eighty- five per cent of the Aboriginal population is to be found in the three states of Queensland, New South Wales and Western Australia, together with the Northern Territory. Queensland has always had the largest Aboriginal population in recent years though, as the table clearly demonstrates, there are marked discrepancies in official assessments of the number of Aborigines and Torres Strait Islanders in that state. There have also been gradual shifts in the ‘rurality’ of the population. Nationally, in 1971, only 44 per cent of Aborigines lived in urban areas. By 198 1 this had increased to 5 8 per cent, though again there are large differences between regions (Australian Bureau of Statistics, 1982).

Summers ( 197 5: 113) has emphasized that even though from an early stage some states attempted slightly more ‘progressive’ policies towards the Aborigines than others, the results of white invasion and settlement were basically the same across the continent and

resulted in the indigenous people living:

. . . institutionalised and dependent lives . . . In the fields of health, education, economics and law nearly all Aborigines remain either discriminated against, or subject to serious disadvantages.

The social statistics make depressing reading. By comparison with Aborigines, white Australians, for example, are 12 times more likely to receive an education beyond the age of 15. Also, the Aboriginal unemployment rate is at least four times that of whites, as is the death rate among children under one year (Williams, 1983). This is among a seriously dis- advantaged population where people under 18 currently account for 60 per cent of the total. Moreover, it has been claimed that Aborigines have the highest imprisonment rate of any racial or ethnic group in the world. While the national average for this statistic is 67 per 100 000 people, for Aborigines it is currently 800 per 100 000 (The Austtaliun newspaper, 24 July 1985).

Against these social indicators must be set some of the undoubted achievements of Aborigines. ln 1967 they finally won the right to vote in their own country, and 1971 saw the first Aboriginal politician secure a seat in the upper house of the Commonwealth parliament. In the 10 years to 1981 there was a three-fold increase in the number of indigenous people with educational qualifications and a doubling of the proportion of Aborigines in white-collar occupations. This now stands at 19 per cent (The Australian,

180 Native kind rights and claims in Australdo

4 September 1985). As the numbers of educated Aborigines increase, the level of political awareness also rises in tandem with demands for just compensation for 200 years of exploitation and genocide.

But arguably it is in the area of dispossession from the land that the most serious injustices have occurred, and it is this subject that is of the greatest interest to geographers (Figure 2). In the earliest days of European settlement the official government policy towards Aborigines was one of assimilation, but by 19 11 this had been replaced everywhere by a policy of segrqyation and protection. Spatial separation of people in ‘reserves’, ‘homelands’ or ‘missionary settlements’-whether in the United States, South Africa or Australia -has always been a uniquely ~g~graphic~’ strategy that has been employed at different times to good effect by dominant white groups to contain exploited coloured populations. Accordingly, from about 1900 onwards, Aboriginal reserves were proclaimed throughout Australia. In South Australia, Queensland, Western Australia and the Northern Territory, in particular, they were often very extensive but were invariably set aside on land which at the time was considered of only minimal value to Europeans. Revocations and excisions were commonplace if the land was subsequently found to have utility for pastoralism or mining. Restrictive ‘protectionist’ laws relating to movement, place of residence, guardian- ship of children and the right to drink alcohol were also imposed on Aborigines in all states, and their well-being was frequently in the hands of churches which were often funded directly by state governments (Human Rights Commission, 1983; Nettheim, 1984). Under

this policy it was not uncommon for unrelated Aborigines to be crowded together on reserves in areas far removed from their traditional lands. The warring Kalkadoon Aborigines of north Queensland, for example, in an action reminiscent of the ‘bantustan’ movement in South Africa, were forcefully transported 1000 kilometres to Palm Island. Two explanations have been offered for this ‘segregation’ strategy (Summers, 1975). The first is that the process of ‘Christianization’ and education was easier to carry out if Aborigines were isolated from white society. The second is that as a race the Aborigines

Years

FIGURE 2. Dispossession of the Aboriginal land base, 1788 to the present (adapted from Pittock and Lippmann, 1974).

DAVID MERCER 181

were seen to be doomed to a fairly rapid and inevitable extinction and that, as such, the best policy was one which aimed to ‘smooth the dying pillow’ (Elkin, 1979).

Figure 3 (after Hiatt, 1985) illustrates the contemporary distribution of mission settle-

ments and reserves and Aboriginal lands that are currently under freehold or leasehold title. Two features of the map are immediately apparent: the first is the concentration of large tracts of Aboriginal land in some of the most arid and inaccessible parts of the continent’s interior; and the second is the dispersed pattern of small reserves in the populous and well- watered periphery of Australia.

By the 1930s public opinion pushed the government once again in the direction of a slightly more humanitarian assimilationist policy. This came about at least partly as a result of the publication of the Bleakley Report (1929) entitled The Aboriginuls and Half-Castes of Central Australia and North Australia. This study, commissioned by the Commonwealth government, documented the often atrocious living and working conditions of Aborigines and received widespread publicity at the time. However, as many commentators have pointed out, the rhetoric of assimilation, which has continued in many areas right up to the present day, was-and still is-frequently far removed from the reality. Segregation and protection still continued unchanged, especially in Queensland, Western Australia and New

Freehold/Leasehold l 0 0

Reserve . S

Mission * v

FIGURE 3. Distribution of Aboriginal lands in Australia (after Hiatt, 1985).

Native land rights and claims in Australia

WDALWAlYSHAS) 0 n Cktoba 26 without consultation or mandate, the Federal

LaborCovemmentwillhandoverAyenRockand~ who!e of the Uluu National Park to fewer than 100 AI&&UK TheyGllthenpaythwspecialA~st&msS75,OCNla~to lease it back from them. All Australians vkii Am Rode will paytoseeitandthenewownmwillget2OPmofthatfeeaswell.

The Northern Tenitoiy Cowmmen tisadamantly opposed to this action: l It is contrary to accepted procedures under which land claim.5 haw been made - until now. l Itshowsanan~@~~tdiwej@dbytheHaw~Labor Government of the inter&s of the Northern Territory and of allAust&w% l It is another mixw of Commonwalth power in an aea which has always been @a&d z a We responsibiii. l It places in the hands of jut a few that which below& to all A&t&w Ayers Rock, the hat of ths countw.

FIGURE 4. Advertisement placed by the Northern Territory government in

The Northern Territory Gxmment seeks support fmm theAuMiancommuoitytoprewntthki&ofgws inqons&ii7heHlaborCo~entm&be remi&dthatitise!&edton3ptxtthetiesofthem&ity ofAsb&vs,nottoserwthenanwfactionalb&n3tofik ovmlettwing.

Wi Katherine Co@ (abeady under claim) be nexti Perhaps the &at Ranier Reef will follow.

Aosb&os did not give the Hawke Gownment a mandate to divide this counhy.

They= OUT heritage, giwitaway

Melbourne’s The Age newspaper (8 October 1985).

South Wales; the Aborigines themselves were rarely consulted on their future, and they continued to be treated as second-class citizens.

DAVID MERCER 183

One notorious example of the callous treatment of Aborigines occurred in Queensland in the period 1957-1965. Rich deposits of bauxite had been discovered on the Cape York peninsula of northern Queensland in the 195Os, but much of this underlay Aboriginal reserves and mission lands. In 1957 the Queensland state government summarily passed the Corn&o Act, which resulted in the instantaneous excision of some 3000 square miles from the Mapoon Aboriginal Reserve and effectively handed it over to the Comalco aluminium company. Later, in the period 1963-1965, police were used to forcefully remove Aborigines from their tribal lands and many were taken into custody for resisting the take-over (Roberts, 1975). This was to be the first of many similar conflicts between Aboriginal groups and mining consortia and pastoral companies (invariably backed up by state government legislation) in recent years (Middleton, 1977; Harman and Head, 1982). Again, in the 196Os, for example, the Gurindji people of the Northern Territory withdrew their labour on the extensive Wave Hill cattle station and defied the British owners by establishing their own settlement on the property (Lippmann, 1981). As well, in 1963, the Yirrkala people of Arnhem Land in the Northern Territory dispatched a petition to Canberra written on bark in their native language, taking issue with the exploitative activities of the Nabalco aluminium company on their land on the Gove Peninsula. In many ways this historic petition symbolized a turning-point, and from this time onwards the land rights movement gathered momentum around the country.

In one sense 1967 was a significant year, for it was then that the Australian people voted ‘yes’ in a referendum on the constitutional question of whether the Commonwealth government should be given the power to legislate on Aboriginal issues (Bennett, 1985). Prior to that time this authority rested solely with the states. However, the situation is now a complicated one, with both the Commonwealth and the states possessing legislative power in this area. There are also signs that in recent years the Australian public has become confused and uncertain about the land rights issue. In 1984 a national poll was commissioned by the Federal Department of Aboriginal Affairs on this question. A total of 2000 people were interviewed across Australia, and the results were made public in 1985. The survey found that while 18 per cent were strongly in favour of the granting of land rights and 24 per cent were equally opposed to such action, the vast majority (52 per cent) were undecided. These findings were reported in the national Australian newspaper (28 August 1985) under the headline ‘Few support aboriginal land rights’. Others have since pointed out that this was a misleading heading because by far the largest group of respondents contained an unknown number of people who support land rights ‘with reservations’ (The Age, Melbourne, 22 March 1986).

Even though the majority of Aborigines have rallied around the land rights movement as the central feature of their political struggle, it needs to be said that a minority of them-notably those involved in the One Australia Movement-are firmly opposed to land rights legislation on the grounds that it purportedly contains strong elements of an apartheid policy with separate geographical areas designated for whites and non-whites. Their preference is for assimilation rather than segregation (The Age, 14 September 198 5). This argument is also vigorously promoted by many vocal white spokespersons, who emphasize the ‘injustice’ of a situation where a group forming only 1.2 per cent of the total population either owns or has reserved for its exclusive use nearly 10 per cent of the Australian continent (Blainey, 1985). This was the assumption behind the Northern Territory government’s consistent opposition to the symbolic handing-over of Ayer’s Rock (Uluru) by the Commonwealth government to its original Aboriginal owners in October 1985. It was seen as an unnecessary and ‘unjust’ act, and advertisements of the kind included as F&re 4 were placed by the conservative Northern Territory government in all the major Australian daily

184 Native land rights and ciaipns in Australia

newspapers in October of that year. The counter-ar~ment, of course, is that Aboriginal ancestral lands were originally seized illegally in the most barbaric manner and that land rights legislation is one way of at least partially redressing historical wrongs. The land rights movement differs fundamentally from the South African apartheid model in that it contains no element of theforcefuI removal of non-whites to separate homelands (Shea, 1985).

The discussion now turns to a consideration of salient developments over the last decade or so in Aboriginal land claims and legislation. In order to contain the account within sensible limits the survey is restricted to initiatives emanating from the Commonwealth government in Canberra. Recent events affecting Aborigines at the state level are thus largely bypassed. In outline, what follows falls into two main sections: the first focuses on recent land rights developments in the Northern Territory; and the second concentrates on the fluctuating fortunes of national land rights initiatives.

Land rights and claims

In 1972 a Labor government was elected to office at the national level in Australia after many years of conservative administration. The newly elected Prime Minister, Mr E. G. Whitlam, made no secret of his desire that, as far as possible, Aboriginal land claims should be satisfied. However, because of the federal nature of the country’s constitution, it was not possible for a national government to effect simultaneous nationwide reforms in this area. Accordingly a decision was made to focus early attention on the Northern Territory. To that end the Prime Minister immediately instituted a Royal Commission under Mr Justice Woodward to inquire into the means whereby land rights legislation could be introduced with all due speed in the Territory. At that time this area was administered by the Commonwealth government. (It was not until 1978 that the Northern Territory was granted what amounted to semi-autonomy as a state. However, the Commonwealth still retained control over uranium mining-an important enterprise in the north-and national parks and Aboriginal affairs are still administered from Canberra. Also, more than 80 per cent of the Territory’s finances are provided by the Commonwealth government.) Justice Woodward was already well acquainted with the Aboriginal cause since he had represented the plaintiffs in the famous Miliwpum v. Nabako case referred to earlier in the article. Throughout the 1960s the Northern Territory had been the setting for a number of particularly bitter disputes between tribal Aborigines and mining and pastoral companies, and it was entirely appropriate that this vast region should become the focus for Common wealth initiatives. It is also of some relevance that the north was one of the most recently settled parts of Australia as far as Europeans were concerned and that, as such, the Aborigines had retained many of their original traditions and had always resisted assimilation (Rowse, 1983).

In his final report, published in 1974, Justice Woodward demonstrated his strong sympathy for the Aboriginal cause by outlining what he saw as the fundamental assumptions underlying the recognition of land rights:

(i) the doing of simple justice to a people who have been deprived of their land without their consent and without compensation;

(ii) the promotion of social harmony and stability within the wider Australian community by removing, so far as possible, the legitimate causes of complaint of an important minority group within that community;

(iii) the provision of land holdings as a first essential for people who are ~onomically depressed and who have at present no real op~rtunity of achieving a normal Australian standard of living;

64

(4

DAVID MERCER

the preservation, where possible, of the spiritual link with his own land which gives each Aboriginal his sense of identity and which lies at the heart

of his spiritual beliefs; and the maintenance and, perhaps, improvement of Australia’s standing among the nations of the world by demonstrably fair treatment of an ethnic minority.

185

(Aboriginal Land Eights Commission, 1974: 2)

One eventual outcome of the Woodward Royal Commission was the passage, in 1976, of an important piece of legislation known as the Aboriginal Lam! Rights (NT) Act. Under the provisions of this controversial Act-which has subsequently been amended no fewer than eight times-the majority of Northern Territory Aboriginal reserves were converted to freehold title (about 19 per cent of the land area of the Territory), and all unalienated Crown land potentially became available for native claim. In addition to the original reserves, some 13 per cent of the Northern Territory is now in Aboriginal hands, but in total this still represents only about one-third of the land area. Claims are lodged through regional land councils. These are run by Aborigines and it is their responsibility to identify ‘rightful’ eligible claimants. A Judicial Commissioner finally adjudicates on the often difficult question of historical claims to ‘traditional ownership’ (Keon-Cohen and Morse, 1984). Table 2 presents details of the status of the 86 indigenous land claims that were lodged up to June 1985. The process can often be protracted and by no means all claims have been successful. Jn addition, opponents frequently appeal to the High Court if the ruling goes against them. Nevertheless, in the period 1977-1982, under the first Commissioner- Mr Justice Toohey-the ‘success rate’ for Aboriginal claims has been reasonably high. About half the clams have been totally successful and half have partially achieved their

TABLE 2. Northern Territory land claims status: disposition of the Northern Territory land claims, Aboriginal Land Rights (NT) Act, 1976, as at 14 June 1985

MFC NLC CLC TOTAL

A.

B.

C.

D. E. F.

G. H.

I.

Number of claims lodged since the Act came into force on 26 January 1977, and not later amalgamated with or replaced by other claims, or withdrawn: Inquiry completed, report submitted, Ministerial decision given: Inquiry completed, report submitted, Ministerial decision awaited: Concluded by legislation: Inquiry completed, reports yet to be submitted: Not entertained (being claims to land not open to claim): Inquiry in progress: Inquiry may commence before 31 December 1985: Not yet listed for inquiry?

1 38

8

2

:

2 2

2 1 18

1 38

37

9

1

1

2

2:

47

86

17

3 1

4

2 4

7 48

86

Key: MFC = Morris, Fletcher & Cross; NLC= Northern Land Council; CLC = Central Land Council. a Of the 29 CLC claims not yet listed for inquiry, 24 await the outcome of a proposed legislative review, and 6

of the 18 NLC claims not yet listed for inquiry relate in whole or part to stock routes, stock reserves, bore and police reserves, and also await the outcome of the legislative review.

Source: Aboriginul Law Ed&z, No. 15 (August 1985: 3).

186 Native Iand rights and ckzims ia Australia

objectives. On the other hand, if success is judged in terms of land area and numbers of satisfied Aboriginal claimants, then the success rate is much higher than 50 per cent (Hiatt, 1984).

One important feature of the legislation is that Aborigines have been granted the right of veto over resource projects proposed on their lands. In effect this means that the three land councils can either refuse to negotiate over suggested mining or similar ventures, or can set the ground-rules for extended impact studies and/or negotiations. The only exception to this ruling, according to the 1976 Act, is those cases where the ‘Governor-General has, by proclamation, declared that the National Interest requires that the mining interest should be granted’. So far there is little evidence that Aborigines have been totally opposed to new resource projects in the Territory (Coombs, 1982). Rather, the evidence suggests that Aborigines frequently view mining projects favourably so long as they are allowed a voice as to how, when, where and at what pace development plans proseed, and so long as their traditional way of life is not unduly threatened. Moreover, there are few indications that land rights legislation in the Northern Territory has been to the detriment of the mining industry. In 1983184, expenditure on exploration for minerals other than oil in the Northern Territory amounted to $24.2 million. In 1982/83 the total was only marginally higher at $2 5.6 million (The Age, Melbourne, 12 April 1986).

Despite this, since 1977, large mining and pastoral companies have consistently protested against the alleged inequities attending successful land rights claims in the Northern Territory and have continually voiced fears concerning the growing power of the land councils. In this they have been joined by prominent Northern Territory politicians and administrators anxious to see ‘development’ proceeding without hindrance in the north and controlled exclusively by whites. In 1981, for example, the Northern Territory government put considerable pressure on the federal government to make substantial changes to the A~o~igin~~~~ Rights (NT) Act, 19 76. These included the suggestions of a cut-off date for land claims and the cessation of any further conversions of leasehold to freehold land under Aboriginal ownership. The challenge was eventually tested legally in the courts, but the judgement went against the Northern Territory government (Legal Reporter, 1984). Later challenges followed. Attention has already been drawn to the notice (see Figure 2) placed by the Northern Territory government in Australian newspapers in October 1985. This advertisement was part of an intensive $400000 publicity campaign on the part of the Territory government against the handing-over of Uluru National Park to the Mutitjulu community. It is symptomatic of a growing movement in support of the granting of full statehood to the Northern Territory, a status which it does not presently enjoy (Brookes, 1978).

As noted, both the Commissioner and the land councils have had to contend with the enormous complexities of Aboriginal kinship, customs and traditions. The Aborigimzl frrnd Rights (NT) Act, 1976 specifies the claimants have to be ‘traditional aboriginal owners’ but,

as Keen (1984) points out, ‘ownership’ as understood in affluent, Western society cannot be directly translated into Aboriginal discourse. In addition to there being wide variations from region to region in terms of Aboriginal relations to ‘their’ specific territory, it is common in traditional tribal law for foraging rights to be granted to a diversity of widely scattered Aboriginal groups. In this sense Western concepts of ‘ownership’ and ‘demarcation’ sit uneasily alongside Aboriginal traditions. A number of contemporary anthropologists have pointed out that the concept of ‘traditional Aboriginal owner’ embodied in the 1976 legislation is based upon a now outdated and inapprop~ate model of Aboriginal land tenure having its origins in the writings of Radcl~e-Brown in the 1930s (Radcliffe-Brown, 1935; Gumbert, 1981).

DAVID MERCER 187

Uranium mining in the Northern Territory is one particular issue that has served to highlight the difficulties inherent in the concept of ‘traditional Aboriginal ownership’ as well as some of the underlying contradictions within the Aboriginal community towards mineral extraction in general. The Commonwealth government is deeply committed to uranium mining in the Northern Territory, and mining agreements are negotiated directly between the government and Aboriginal land councils. For example, under the terms of the 20-year Ranger uranium contract which became effective in 1979, the Commonwealth government pays $200 000 a year to the Northern Iand Council. In addition, the mining company (RUM) will pay a total of $1.13 million to local Aborigines, and a royalty production rate of 4.25 per cent is paid into the Aboriginal Benefits Trust Account (Cousins and Nieuwenhuysen, 1984). These payments are not indexed for inflation.

In anticipation of the profound social, economic and ecological disruptions inevitably accompanying large-scale uranium extraction in the Northern Territory, the Common- wealth government instituted a far-reaching inquiry into this question in the 1970s under the Presiding Commissioner, Mr Justice R. W. Fox. This was known as the Ranger Uranium Environmental Inquiry, and it eventually produced two major reports, one in 1976 and the other in 1977. Inter alia, the Fox Commission concluded that:

While royalties and other payments. . . are not unimportant to Aboriginal people, they see this aspect as incidental, as a material recognition of their rights. The material benefits they visualize as likely to become available to them by reason of their collective receipt of these amounts are things like motor vehicles, hunting rifles, fishing gear and the like. Our impression is that they would happily forego the lot in exchange for an assurance that mining would not proceed (R?nger Uranium Environmental Inquiry, 1977: 269).

More recently-in October 1985-allegations have surfaced that the Ranger uranium mining agreement was forced on the Northern Land Council by the Commonwealth government in 1978, that only three of the 40 owners initialled the agreement, and that crucial information relating to the mine and its likely impact was withheld from the

Aborigines (The Age, Melbourne, 29 October 1985). As a consequence, the Northern Land Council has now challenged the validity of the Ranger uranium agreement in the nation’s High Court. The council is seeking much stricter environmental safeguards, a higher royalty payment and restitution for damages.

Today, some 11 years after its enactment, the Aboriginal Lund Rights (NT) Act, 1976, is as contentious among some sections of the white community as it was the day it became law. Most recently, the federal government has foreshadowed an amendment which could seriously weaken the Act. The proposed amendment is the outcome of sustained political pressure from the country’s powerful mining lobby, and it relates to the Aboriginal right of veto over mining on Aboriginal lands. If the federal government is successful in changing the legislation, Aborigines will lose this important right and will, instead, be given six months within which to agree to mining ventures. If at the end of that period they have not granted their consent, the matter would be placed in the hands of an independent tribunal which would make a recommendation to the federal Minister for Aboriginal Affairs (The Age, Melbourne, 5 November 1985).

National land rights initiatives and problems

Both before, and immediately after, its election to federal office in 1983 the Hawke Labor government reaffirmed the Australian Labor party’s commitment to national land rights

Native land rights and claims in Australia

Continuing discovery and I State Postcode -I

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FIGURE 5. Advertisement placed by the Victorian Mining Industry Council in Melbourne’s The Age newspaper (5 November 1985).

development of Australiab minerals and petroleum is vital to the nation’s economic growth and prosperity. Without access there will be no new discoveries. &ginal interests can beprotected without denyinp access. Why is it important

” Last financial year the value of mining exports was over $13,100 million, representing more than 44% of Australias total merchandise exports and proviclmg hundreds of thousands of jobs.

No other industry

!I is so vital to the living standards of every

What is the problem? The Australian mining

Australian. If it is choked by the-

industry is effectively being denied “locking up” of large areas of land, your economic future will be

access for exploration and harmed. development to verv large areas of 7--------

governments on behalf of the - whole community. Their development earns large government revenues and promotes economic growth. Why is it of national importance?

Abori&al land wh”ich contain minerals and petroleum.

These commodities belong to

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legislation. At that time, in addition to the Northern Territory, only the governments of New South Wales and South Australia had taken any positive action at the individual state level to introduce some semblance of land rights legislation.

DAVID MERCER 189

Even so, the relevant acts varied considerably in detail and the four other states- Victoria, Western Australia, Tasmania and Queensland-had no comparable legislation.

Initially it was the federal government’s stated intention to use the 1976 Northern Territory legislation as a model for a national land rights policy. To that end extended discussions were held across Australia between the federal Minister for Aboriginal Affairs and state government, mining, grazing and Aboriginal representatives throughout 1984. These talks culminated in the release, in February 1985, of a discussion document entitled ‘The Commonwealth’s Preferred National Aboriginal Land Rights Model’ (Department of Aboriginal Affairs, 1985). In outline and scope the so-called ‘preferred model’ bore a close resemblance to the Northern Territory Land Eights Act, but with one significant difference: namely that the Aboriginal right of veto over mining developments had been excised. Nationwide, this was taken by Aborigines as a strong indication that the Northern Territory legislation would also eventually be amended to remove the controversial provision.

As noted, the ‘preferred model’ was the outcome of extensive deliberations between a variety of often conflicting interest groups, and also involved the sensitive issue of Common- wealth/state relations. In the end the discussion paper was a delicate attempt to ‘balance’ these various forces in the form of a suggested ‘cooperative’ federalist policy. But on all counts it failed. Aboriginal groups protested at the weakness of the proposed legislation, and mining interests objected to the whole idea of land rights legislation, as indeed did the state governments of Tasmania and Queensland. In recent times-in 1982 and 1983-landmark test cases in the nation’s High Court had resulted in the governments of both these states suffering the ignominy of having important policy decisions overridden by the Common- wealth government under the constitution’s ‘external affairs’ power (Lane, 1982, 1983). Yet in the contemporary realpolitik of Australian Commonwealth/state relations under the leadership of a Prime Minister basically committed to conservative values and a consensual style of politics, this is not a course of action that is generally viewed with very great favour.

Historically, ‘interference’ from Canberra invariably has been treated with hostility at the state level and, depending on the timing, there are often very real electoral risks involved in open conflict with the states, even in cases where the Commonwealth has the constitutional power to override them. Hence it is perhaps no surprise that progress towards full- fledged national land rights legislation has been faltering, at best. When the present Labor government was elected to office, its pledge was to introduce such legislation in 1984. Today, in 1987, that goal seems as remote as ever. There appear to be three main factors militating against the ideal of uniform, national legislation at the present time. These are: the power of the mining lobby; the strength of the states’ rights movement; and disunity among the Aborigines. Let us briefly examine each of these in turn.

Since the Hawke government assumed power the Australian mining industry has pursued a relentless campaign to oppose land rights legislation of any kind at either the state or Commonwealth levels and to dismantle the Northern Territory act. The campaign has been waged quite openly and has appealed to the ‘good sense’ of Australian citizens to recognize the evils of legislation, which threatens the well-being of the country and the future of an industry which accounts for almost 50 per cent of the nation’s exports by value. Lavishly funded television and full-page newspaper advertisements, such as that included as Figure 5, were presented to the Australian public at an accelerating frequency after the proposals for national land rights legislation were made public in February 1985. In addition, since 1980 in particular, the industry has laboured to promote the idea of responsible self-regulation regarding Aboriginal issues and to highlight cases where it has respected and accommodated native interests, especially where sacred sites are concerned (Australian Mining Industry Council, 1980).


The mining industry is an especially strong political force in the resource-rich states of Queensland and Western Australia. In September 1983, the latter state government commissioned the most detailed and wide-ranging inquiry into Aboriginal land rights and claims ever conducted in Australia. This was directed by Paul Seaman QC, and reported in September 1984 (Seaman, 1984). The main recommendations were very much in favour of the interests of the state’s 31000 Aborigines and urged the Western Australian government to adopt stronger legislation than that existing in the Northern Territory. Eventually a land rights bill was drafted in that state, but most of Seaman’s recommendations were ignored and, largely as a result of pressure from the mining industry and pastoral interests, the bill was defeated in the Legislative Council. The Seaman Inquiry and the vigorous debate which ensued in its aftermath were watched closely by the Commonwealth government, because the three-cornered conflict between the Aborigines, the state government and the mining industry was a microcosm-and less complex version-of the political battles being fought on this very issue at the national level at much the same time. There is little doubt that the failure of the Western Australian Labor government to frame and implement a successful, working, land rights policy was seen as a major setback for the proposed federal model which, ideally, needed the active cooperation of all the states (Altman and Dillon,

1985). Western Australia, like Queensland and Tasmania also, did not look at all favourably on

Canberra’s ‘intrusion’ into ‘their’ dealings with the Aboriginal problem. While Western Australia and Queensland made some-albeit feeble-attempts at their own ‘home-grown’ versions of land rights legislation in 1984 and 1985, the Tasmanian government showed absolutely no interest in the issue. And South Australia was not enthusiastic about national legislation because it, too, had developed its own approach and solution to native land rights in 198 1 by handing over some 10 per cent of the state to the Pitjantjatara people in one land grant in the northwest of the state. This executive action was similar to the manner in which land grants are made to native peoples in North America, and South Australia would be required to institute a land claims procedure to bring it into line with the preferred federal model. It would also be required to excise the Aboriginal right of veto over mining and

exploration projects. Finally, there is the problem of disunity and fragmentation among the Aborigines them-

selves. Aborigines are very far from being a homogeneous group. They range from traditional tribal people having experienced little contact with Europeans, at one extreme, to metropolitan-based professionals at the other. They also vary considerably in their degree of ‘Aboriginality’ and in their commitment to indigenous causes. In recent years conservative forces in Australia have attempted to discredit the land rights movement by arguing that the only people who have any right to a voice on land claims issues are the 70000 or so full- blood Aborigines who are directly descended from their pre-European contact ancestors. The remaining 150 000 ‘mixed races’, it is claimed, are not genuine ‘Aborigines’ at all (English, 1985).

For the 12 years from 1973 to 1985 Australian Aborigines had their own body to represent their interests at the national level. This was known as the National Aboriginal Conference (NAC) and it consisted of 41 elected candidates forming a consultative committee. Unfortunately, the role and charter of the NAC was never clearly defined, it was rarely consulted by the federal government and it lacked real power. It was disbanded in July 1985 at just the time when the national land rights model was being debated nationally. A new, more accountable body has been foreshadowed, but this is unlikely to become a reality before about 1988 (The Age, Melbourne, 1 July 1985).

DAVID MERCER 191

Summary and conclusion

Several key themes have emerged from this discussion. The first relates to the growing international pressure on all countries with native peoples to meet their demands on a variety of issues. The main focus of the present paper has been on land rights but, as Nettheim (1985) has recently pointed out, this is only one of a number of indigenous claims crying out for attention. Others include such things as physical survival, sovereignty, self-determination, cultural identity, compensation and non-discrimination. Since World War II the claims of the ‘fourth world’ have become more strident and are now being taken much more seriously in international forums. Unfortunately, in many instances, the native peoples themselves have acquired negotiating and protest skills too late, and either have been totally exterminated or have all but died out or lost their cultural identity.

The second key theme addressed here concerned the present status of Aborigines in Australia as we approach the bicentenary of Europen settlement of the continent, in 1988. It was pointed out that, after years of exploitation and virtual genocide (McLeod, 1984), the Australian Aboriginal population is now on the increase, and the movement for Aboriginal land rights and self-determination is gaining considerable momentum, frequently assisted by sympathetic whites. However, that movement is not without its serious setbacks, and Australians have recently witnessed both the collapse of plans for uniform, national land rights legislation and the gradual erosion of earlier, important Aboriginal gains enshrined in the 1976 Northern Territory legislation.

The delicate balance between Commonwealth and state powers is another recurring theme in Australian political geography, and it now appears as though the states have won what amounts to at least a temporary victory by insisting that they should be allowed the freedom to tackle the A~~gi~l question in their own way (Duncan, 1984). In at least three states-western Australia, Queensland and Tasmania-this is being interpreted as an aggressive ‘no land rights’ stance. Representatives of the primary sector have always been an extremely powerful political force in Australian politics, and it is largely pressure from mining and pastoral interests that has caused the present Labor government to back down on national land rights legislation. In a recent speech, the federal Minister for Resources and Energy, for example, stressed that:

it is on our farms and, particularly, our quarries--that the economic future of this country is going to ride for a long time yet (Evans, 1985b: 730).

He then adverted to the:

r~~~ibili~ of gove~ent in relation to the mining industry. . . to try and adjudicate between competing claims for land use priority (Evans, 198%~ 730).

The evidence so far suggests that while the present federal government may have started out in 1983 with the very best of intentions with respect to the nation’s indigenous population, after some four years the Aborigines themselves have little to celebrate. Formally, on 3 March 1986, the Federal Cabinet announced that it had abandoned plans for national land rights legislation (The Age, Melbourne, 4 March 1986). In large measure this decision was made because the Labor Premier of Western Australia, Mr Burke, had threatened to challenge national legislation in the High Court if it were introduced. Once again, states’ rights have been invoked to thwart a progressive initiative in Canberra. This is an enduring theme in Australian political geography. Under the Hawke Labor government, Australian Aborigines have not only witnessed the collapse of their dream of uniform, national land rights le~slation but are also now having to mount a campaign to fight the government’s proposed further weakening of the Northern Territory l&d Rights Act.

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