Standing in Deep Time; Standing in the Law: A Non-Indigenous Australian Perspective on Land Rights, Land Wrongs and Self-Determination

1.     Mr. Rhodes, Terra Nullius and Contemporary Values

There is something passing strange about an Australian Catholic priest, descended from Irish immigrants, standing at a podium in Oxford in 2005 daring to offer an opinion on indigenous land rights and self determination.  What right do I have to speak?  What could I usefully say?  I take heart from Amnesty International's conviction that the ordinary person can make a difference by having a commitment to public advocacy and private communication with both the prisoner and the jailer, acting in solidarity with the prisoner and putting pressure on the jailer.  As a non-indigenous advocate for indigenous rights, I am committed to dialogue with all parties and to public advocacy that keeps hope alive - the hope of finding common ground, sharing country and reconciling differences in societies whose indigenous members have survived the adverse effects of colonisation.

Being a priest speaking about land rights on the cusp of old Europe, I am haunted by the words of Chief Justice Marshall in the 1823 decision of the US Supreme Court Johnson v McIntosh: [1]

I have agreed to participate in this Amnesty lecture series knowing that indigenous speakers have preceded me.  In my home country I have been a long time advocate of Aboriginal land rights and self-determination.  That has not spared me some spirited disagreement with Aboriginal representatives.  And of course, government apologists see me as  an incurable romantic dreaming of the noble savage's renaissance.  Having been privileged over many years to participate in the indigenous struggle for land rights in my home country, I still believe in that struggle and the primacy of Aboriginal aspirations for self-determination while Aboriginal leaders seek to accommodate themselves to the realities of their traditional communities, the demands of government and the expectations of the descendants of their colonisers.

Without land rights and self-determination, indigenous peoples in previously colonised societies are treated as the members of one polity without a voice and as people without distinctive rights.  With land rights and self-determination they are members of two polities with their own conflicting voices (realist, liberal and idealist), living under two laws which require reconciliation when the indigenous law and the coloniser's law collide or when the indigenous person asserts individual rights against the collective rights of the clan or community. Land rights and self-determination provide the space and the time for these indigenous peoples to live in their two worlds.

Indigenous people without land rights and without a modicum of self-determination are individuals and societies denied the place and opportunity to maintain themselves with their distinctive cultural identity in a post-colonial, globalised world.  Indigenous people with land rights and a modicum of self-determination are individuals and societies with an enhanced choice about how to participate in the life of the nation state and of the global economy while being guaranteed the place and opportunity to maintain their cultural and religious identity with some protection from State interference and from involuntary assimilation into the predominant post-colonial society.

This evening I will argue four propositions about previously colonised societies with indigenous minorities:

• Law and policy should recognise that even today indigenous minorities in these societies have to live in two worlds, and the common good of these societies (as well as respect for the rights of the indigenous citizens) requires some recognition of land rights and self-determination.

• Indigenous leaders are like politicians dealing in international affairs. They have to deal with their domestic constituencies and treat with the leaders of other governments which happen to be the elected governments of all the people in the post-colonial society. As in the field of international relations, there will be indigenous leaders and theorists who are realists or idealists and others seeking reconciliation in the centre, who are liberals.  All must be heard.

• Indigenous people should be free to opt for their individual rights as citizens regardless of the arrangements between government and the indigenous leadership.

• Only by tolerating the uncertainty and complexity of land rights and self-determination can non-indigenous people own their history and their responsibility for the continuing plight of their indigenous citizens.

I think it appropriate in Oxford to commence discussion about land rights with reference to the Privy Council's 1919 decision In re Southern Rhodesia in which Mr. Rhodes' British South Africa Company was a party.  This decision related to land transactions between Cecil Rhodes and the natives of Zimbabwe which may in part have contributed to some of you being able to study here at Oxford, while the indigenous people suffered dispossession and deprivation.   The other parties to the proceedings were the Legislative Council of Southern Rhodesia, the Crown and the natives.  Lord Sumner in his report of the Privy Council wrote: [2]

Leslie Scott KC and Stuart Bevan are described as appearing "for the natives", perhaps the shortest and most generic description of a party ever to appear in the authorised law reports.  On the next page of his Report, Lord Sumner writes: [3]

Lord Sumner observed that there was "a wide tract of much ethnological interest" between these tribes and other indigenous peoples "whose legal conceptions, though differently developed, are hardly less precise than our own".  He thought the natives in question "approximate rather to the lower than to the higher limit". [4]   According to the Privy Council, the maintenance of native title rights "was fatally inconsistent with white settlement of the country" which "was the object of the whole forward movement, pioneered by the Company and controlled by the CrownÉwith the result that the aboriginal system gave place to another prescribed by the Order in Council".  The Privy Council concluded its consideration of the native title claim, "Whoever now owns the unalienated lands, the natives do not." [5]   The natives were the people of one new polity without a voice, under one new law without rights.

Turning to the dispute between the company and the Crown, the Privy Council decided that the British South Africa Company was entitled to dispose of any unalienated lands using the proceeds to offset the costs of administration.  Should the crown terminate the Company's administration of Southern Rhodesia, the company was entitled to reimbursement from the Crown for previous costs - either from the proceeds of further land sales or from public funds.

At the height of colonial expansion by European empires, those indigenous groups who bore some resemblance to their colonial masters were to enjoy some recognition and protection.  Those differing from their new masters who could barely comprehend their social reality were to be denied any semblance of land rights and self-determination.  Such Eurocentric notions put blinkers on the law's horizons of justice. 

74 years after the Privy Council's decision about the fortunes of the British South Africa Company, the High Court of Australia had, for the first time in the Mabo case, to consider the rights of the Australian "natives" to the "unalienated lands".  In 1992, that court decided to discard the distinction between inhabited colonies that were deemed to be terra nullius and those which were not: [6]

With the removal of the blinkers used by Lord Sumner and most Europeans of his time, indigenous people are not guaranteed a better life, but they can be assured the legal and political preconditions for better participation in the life of the nation state, while maintaining and adapting their traditional places and lifestyle.

The contemporary Australian court went on to say: [7]

Does this reference to contemporary values imply that the judges thought the majority of Australians, if asked in an opinion poll, "Do you support aboriginal land rights?", would have answered unequivocally  "Yes".  I do not think it can mean that. I am prepared to accept that the majority of Australians if asked that question in 1992 would have answered "No".   The values that underpin the Mabo decision are respect for property, the desire for certainty in the conduct of relations relating to land, predictability in the application of the law by courts for the resolution of conflict, and non-discrimination in the sense that governments should not treat persons differently unless there is a coherent rationale for such different treatment.  In particular, governments should not treat more adversely people's property rights simply because they are members of a particular race.  These are the enduring values of contemporary Australians.

After the Mabo decision, I met with the senior partners of one of Australia's largest legal firms.  They were agnostic about the decision's effect, doubting that it had really changed anything.  I pointed out that my line of work had not changed but that prior to Mabo it was called politics; post Mabo it was called law.  It was unimaginable prior to Mabo that a Jesuit working for Aboriginal rights would have been invited to the annual retreat of a leading law firm.  Something had changed. 

At the end of the session, one of the lawyers, a Mr. Murphy pointing out that his ancestors were Irish, asked:  "If there are special rights for the Aborigines, why don't you have special rights for the Irish?"  Being a Brennan and my mother an O'Hara, I have some sympathy for the rights of the Irish in Ireland.  I take some consolation and pride in the fact that there is somewhere on earth that the Irish can be as Irish as they like, with minimal interference by other persons.  The more relevant comparison is not with the rights of the Irish in Australia but with the rights of the Irish in the Republic of Ireland.  There is only one place on earth where Australian Aborigines have any prospect of living out the fullness of community lives as Aborigines.  That is on the Australian continent, though as part of a nation state where as an indigenous minority, they will be far more circumscribed in their distinctive cultural choices.  But there are possibilities for them, and those possibilities are enhanced by recognition of their land rights and their ongoing entitlement to self-determination within the life of the nation.

2.     The Symbolism and Utility of Land Rights

Indigenous groups with some recognition of their land rights face the dilemma: how to live within the nation state participating in its economy while maintaining distinctive culture and heritage.  That ought be their decision, and no one else's, even if that someone else be a government with a fresh political mandate.  Those of us who are non-indigenous members of such nation states need to guarantee the minimum requirements for these indigenous groups to make a realistic choice.  Doing so, we have the opportunity, at some considerable cost, to ground our national identity and project in the depth and complexity of the history of our land and all its peoples.

In 1995, I made my first trip to the United States.  I headed directly to Alaska.  On arrival at the St Mary's Yup'ik Eskimo community on the Andreafski River, a small tributary of the mighty Yukon, a local community member offered to show me around the community.  Despite my jetlag, I readily agreed.  I was keen to meet members of an indigenous community who were assured a significant degree of self-determination and land rights as far as the eye could see.  This woman took me first to the local cemetery.  I was perplexed.  She told me the story of the lives and deaths of the three young men who had been most recently buried in the cemetery.  She told me the story of the community without breaching the confidences or imposing on the privacy of any of the living.  There were tales of violence, alcoholism, and dreadful accidents.  The similarities with so many tales that I had heard on Aboriginal communities over the years were stark - and far more immediate than the legal and political differences that distinguished the land rights and self-determination of Alaskan and Australian communities. [8]  

That night I was devastated as I reflected on what I had heard at the cemetery.  One of the local Jesuits showed me a series of newspaper articles highlighting the dreadful social problems confronted by indigenous communities living close to the Yukon.  But how could this be?  These people had not only secure land title over their community lands but also other economic benefits flowing from the Alaska Native Claims Settlement Act of 1971.  They had self-determination.  They not only had their own law making councils.  They had their own courts and their own police; their own schools and a secure land base together with the economic security of a fishing resource which was seemingly boundless in that part of the world - all we could have dreamt of in Australia.  And they lived in such a remote place that very few outsiders had an interest in living there or disturbing them.  They had known Russian and American governments and prided themselves on maintaining their traditions and identity no matter which flag flew at the post office.

No matter which country you survey, no matter what that government's policy, no matter what the present strategy of indigenous leaders, and no matter what the public understanding or sympathy about the position of indigenous minorities, land rights for indigenous people are an essential component in providing indigenous citizens with the choice and the potential to live an authentic indigenous life within the realistic confines of nationality and economy.  Land rights are also the cornerstone for the settlement of historic post-colonial grievances in:

• Providing a land base for some indigenous persons and communities

• Providing some indigenous communities with economic and political bargaining power, assuring them a place at the table

• Recognising the entitlement of indigenous communities to maintain and sustain their religious beliefs and practices, without threatening the public order of the society after colonisation

• Correcting some historic injustices which can be put right without occasioning injustice to other persons

• Validating the post-colonial legal system, providing a greater coincidence between law and justice

• Providing a necessary forum for the resolution of conflicting claims

• Assisting all citizens of the nation state to appreciate the place and entitlements of indigenous people

• Assisting all citizens of the nation state reach a better understanding of their history and their place in the world.

Australia is distinctive because our history of land rights is so brief, our approach so pragmatic and belated, and our commitment to land rights so refreshingly new, fragile and wavering.  While no one seriously suggests substantive change to the system of land holding for indigenous communities in New Zealand, Canada or the United States, some Australians now entertain the hope or thought that Aboriginal problems could be solved if community land titles were transformed into alienable individual titles, encouraging indigenous communities to leave behind their traditional ways and enter the contemporary market place with an initial bonus of transferable land title.

You will recall that Captain Arthur Phillip arrived at Sydney Cove on 26 January 1788 and established a penal colony for undesirable persons from this part of the world, given the future unavailability of the American colonies which had revolted.  The six Australian colonies were the only British colonies in which there was no recognition of land rights.  Only in the last 35 years in Australia, land rights have been recognised for the first time, accepted as part of the just settlement, and now questioned as symbolic, wasteful and misdirected policy.   Land rights and self-determination are the stuff of "culture wars" in Australia.

While everyone is in favour of reconciliation between indigenous and other Australians, protagonists distinguish practical reconciliation and symbolic reconciliation. [9]   Conceding the legitimacy of past grievances, some now see land rights as a symbolic issue providing little practical assistance to Aborigines wanting to live contemporary lives, or even worse, as providing a dead end panacea for life separated from the mainstream in the backwater of community life without economic prospects or relief from the entrapment of the past.  While land rights is seen by some supporters as an honouring of the Aboriginal spiritual relationship with land, others view land rights as a simple matter of setting right an historic injustice, or as a matter of economic empowerment.  I was once asked by a publisher, "Is land rights about power or culture?" I answered, "Both", and still do.

Sir David Lange, ex-Prime Minister of New Zealand and renowned Oxford debater once gave the after-dinner speech at an Australian conference on indigenous and environmental issues.  Lange was bemused by his trans-Tasman audience and told us:  "You Australians are always looking for the final answer to the Aboriginal question.  There is no final answer.  There are only durable solutions which can last a generation or two when once again you will have to sit down and negotiate an agreement for the future."  That is one reason why the more conservative Australian politicians have always opposed the idea of a modern treaty.  It never gets to the stage that you can draw the line and put the past behind you.  There will always be indigenous dissatisfaction because of the historic injustices and because of the ongoing marginalisation which comes from being a minority in the society post-colonisation.  There is no definitive answer for those living in two polities under two laws.

3.     Indigenous Claims to Land Rights in the Terra Nullius of Australia

At Yirrkala, Arnhem Land in the Northern Territory, no penal colony had ever been established.  The people there had traded regularly with the Macassans from Indonesia.  A few Englishmen had come there attempting to run pastoral properties in the nineteenth century but they failed and moved on.  In 1935, the first white men settled there.  They were a couple of Methodist missionaries and their families.  Some Aborigines from Arnhem Land had visited Darwin and seen the conditions in which the Larrakeah people were living as fringe dwellers on the outskirts of town.  They did not much like what they saw of white urban society and its treatment of their Larrakeah kinsmen.  In 1963, the Commonwealth government excised 300 square kilometres from the Aboriginal reserve in Arnhem Land in preparation for the proposed granting of a 42 year lease to a Swiss consortium Nabalco for the mining of bauxite. 

Some forms of mining are not very intrusive.  Bauxite mining requires the stripping away of the entire land surface.  Regeneration of the land takes many decades.  Aborigines who had a long undisturbed and spiritual relationship with the land, celebrating ceremonies at sacred sites for which they cared, were very troubled to learn that a government in Canberra thousands of miles away could give permission to a foreign corporation to destroy their land, invade their community and upset their sacred sites.  With the help of the Methodist missionaries, they sent bark petitions in their own language and in English to the parliament in Canberra respectfully requesting that they be consulted about any measures impacting on their community or on their lands.  The first petition concluded:

Then in 1966, the Gurindji people living at Watti Creek in the Northern Territory walked off Lord Vestey's cattle station demanding better wages and title to their traditional land.  They were also concerned about the sexual exploitation of their women by white workers on the Vestey property.  This "walk-off" became one of the great emblematic events in Australian land rights.  The leader of the walk-off Vincent Lingiari became the father figure of land rights.  Nine years after the walk-off, Prime Minister Gough Whitlam went to Watti Creek, now known by its traditional name "Dagaragu", to hand over a lease of the land to the traditional owners.  Pouring a handful of earth into the hands of Vincent Lingiari, Whitlam spoke for the nation when he declared:

Vincent Lingiari I solemnly hand to you these deeds as proof, in Australian law, that these lands belong to the Gurindji people and I put into your hands part of the earth itself as a sign that this land will be the possession of you and your children forever.

Lingiari replied, "They took our country away from us, now they have brought it back ceremonially.  We are all mates now."  The leaders of two polities had met and the voice of each was heard.  This was a novel development in the terra nullius of Australia.  Each leader spoke with authority for the land: two polities, two laws.  Two song writers (Kevin Carmody, an Aboriginal, and Paul Kelly, a white Australian) wrote a song "From Little Things Big Things Grow":

Four years before the ceremony at Dagaragu, I had commenced my university studies.  A student of politics and law, I was interested to hear Aboriginal protesters who came on campus demonstrating against the policies of the Queensland government on Aboriginal reserves.  Like many white Australians, I had not previously heard Aborigines speak.  I found it difficult to believe that there were places where Aborigines lived, managed by white public servants who controlled many aspects of Aboriginal life.  I heard stories about the need for Aborigines to receive government approval to marry.  Public servants could even dictate the style of swimming costume that could be worn.  These communities had no right to their traditional lands and they were still paid minimal wages.  Aboriginal voices were heard on the national airwaves.  Aborigines were pleading their case with the people, with the parliaments, and finally in the courts.

Having received no satisfaction from the politicians after the lodging of their 1963 petitions, the Yirrkala Aborigines turned to the courts in 1968.  Thus began one of the long games of legal and political ping pong in which the cause of land rights went backwards and forwards between the courts and the parliaments, over the net of public opinion.  Milirrpum and Mungurrawuy were the leaders of the two clan owning groups, the Rirratjingu and the Gumatj clans.  They were joined by Daymbalipu, the leader of the Djapu clan who had access to the Rirratjingu and Gumatj lands for hunting and foraging.  Expert anthropologists, including W E H Stanner, joined traditional Aboriginal owners in explaining the system of traditional Aboriginal law and the Aboriginal connections with land. The judge, Sir Richard Blackburn was impressed but troubled.  After considerable delay, he handed down his decision in 1971, which happened to be my first year of law studies.  Justice Blackburn observed: [10]

However he felt compelled to rule that the British common law did not recognise communal interests in land as described in the evidence in court.   Even if it did, he ruled that all such interests would have been extinguished by the assertion of sovereignty by the British crown.  The lawyers for the traditional owners saw little point in appealing the case even though these were disputed propositions of law because the judge had also ruled against the Aborigines on the facts.  He said, "I am not satisfied, on the balance of probabilities, that the plaintiffs' predecessors had in 1788 the same links to the same areas of land as those which the plaintiffs now claim." [11]  

With no further recourse in the courts, the Aborigines looked again to the politicians.  Change was in the air with the election of the Whitlam Labor government in 1972.  That government was elected with a commitment to legislate for the recognition of Aboriginal land rights in the Northern Territory.  After a royal commission, legislation was proposed and it was passed in amended form by the Australian Parliament at the instigation of the Liberal Country Party government led by Malcolm Fraser after the governor-general Sir John Kerr dismissed the Whitlam Labor government.  Aboriginal traditional owners were granted inalienable title to their lands and a right to veto mining on their lands.  The veto armed these owners with economic bargaining power.  If they had the power to say "No", they were able to say "Yes, subject to conditions favourable to us."  The recognition of the Aboriginal spiritual relationship with land carried with it the prospect of economic enhancement. 

Meanwhile Eddie Koiki Mabo, a Torres Strait islander, was living on the Australian mainland, having been denied permission to return to his island homeland by Queensland public servants who thought him to be a troublemaker.  He decided to organise the Meriam people, a group of Torres Strait Islanders from the Murray Islands, to bring a case in the High Court of Australia to challenge the findings of law made by Sir Richard Blackburn in the 1971 Milirrpum decision.  He thought Blackburn got the law wrong.  He also argued that even if the High Court agreed with Blackburn, the case of the Torres Strait Islanders was distinguishable from that of mainland Aborigines for two reasons.  First, Torres Strait Islanders were not traditionally hunters and gatherers.  They cultivated vegetable gardens and lived in huts in settled villages, thereby having individual interests in discrete blocks of land rather than communal interests in vast tracts of country.  Second, the Queensland crown as sovereign had continued to recognise Torres Strait interests in land.  The Queensland government had even set up courts to determine land disputes between islanders even though no land titles had been granted by the crown.  Mabo had a passion for putting right an ancient wrong, and the imagination and bold vision to see it through to the highest court in the land.  It is one of the tragic ironies of the law that Eddie Mabo, like the claimants in the original Milirrpum case,  did not establish his own native title claim because the trial judge did not accept his evidence.  However his co-plaintiffs, including Father David Passi, did succeed.   Mabo's action provided the vehicle for a declaration of native title by the nation's highest court.

The Queensland government's response to Mabo's claim was one of the last ditch stands by governments still blinkered by the terra nullius mindset.  The government introduced to the Queensland parliament the Queensland Coastal Islands Declaratory Bill of 1985.  The bill was promptly passed.  It was only 14 lines long.  It deemed that Torres Strait Islanders did not have any rights to their traditional lands prior to the assertion of the Crown's sovereignty over the islands in 1879 or that alternatively all rights were extinguished retrospectively to 1879 with no compensation being payable.  The government explained that this bill would avoid the need for limitless research work on mere matters of history being agitated in the courts.  As the legislation was inconsistent with the Commonwealth Parliament's Racial Discrimination Act, the High Court struck down the Queensland provision in 1988, giving Eddie Mabo and his co-plaintiffs the much needed encouragement and opportunity to proceed with the substance of their case. [12]   On 3 June 1992, the High Court of Australia declared that "the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands" and that "the title of the Meriam people is subject to the power of the Parliament of Queensland and the power of the Governor in Council of Queensland to extinguish that title by valid exercise of their respective powers, provided any exercise of those powers is not inconsistent with the laws of the Commonwealth." [13]

As the sun rose over the tip of Cape York on 12 October 1993, the waters of the Torres Strait were exceedingly calm.  As the sun glistened on the water, Father David Passi, the Anglican Pastor of the Island of Mer in the Murray Islands group, stood at the back of the speed boat pointing at a small island close to the shore, declaring, "That's Possession Island."  David smiled broadly as he explained this was the place where James Cook came ashore after his epic voyage up the Australian eastern coastline in 1770, raising his King's flag and claiming possession in His Majesty's name of all he had sailed passed.  David chuckled, "Cook had his back to the Torres Strait when he claimed possession."

Next day at Bamaga on the tip of Cape York, David explained the significance of the Mabo decision to a meeting of his fellow Anglican clergy.  His people believe that in ancient times a figure named Malo set down the law for relations between islanders regarding their lands and waters.  All islanders speak of the myth of Malo-Bomai.  Malo and his maternal uncle made a long sea journey from West New Guinea across to Mer in the east.  These mythical heroes, Malo resembling an octopus, brought the eight peoples or clans into one, "strengthening them with the qualities of a diversity of sea creatures, so giving the power to match the sea and make long journeys across Malo, the deep seas, for canoes and for battle."  In this part of Australia, the indigenous people define themselves in relation to land, sea, each other and seasonal time or prevailing wind.

Fr Passi, known also as Kebi Bala, explains Malo's law:

Passi explains that since colonisation there have been two laws, "the white man's law and Malo's law".  Malo's law is respectful of people's history and connection with the land.  The white man's law is strong.  It believes might is right.  Those who believe in Malo's law have to convince those who practise the white man's law that Malo's law is right.  Might alone is not right.  Speaking about two laws, David Passi was using the discourse of two polities and two religious traditions.

Even the most trenchant critic of the Mabo decision in the Australian Parliament, after traveling to the Torres Strait said, "It is perfectly obvious to me that those people have owned that land forever as history has been recorded.  But it is different to say that all over Australia we should have a feast for lawyers."

The decision was basically a judicious realignment of the common law developed by judges to match the historical reality with the historic land grievance which for the first time had come before the highest court in the land.  The decision posed no threat to sovereignty nor to the Treasury coffers.  The decision was an honest acknowledgement that most Aborigines had been long dispossessed of their lands and any restitution or compensation was a matter for parliaments rather than the courts.  The decision provided an historic opportunity to put right those wrongs of the past which could be put right and to acknowledge those wrongs which forever stained the nation's identity.  This could be done without any threat to any other person's land rights or legitimate economic interests.  The decision provided a unique opportunity for a negotiated settlement of the nation's longstanding land rights question with Aborigines at the government's negotiating table and holding some of their own trump cards.

Two centuries after European settlement, most Aborigines had been dispossessed of their lands.  A just settlement of land grievances required more than the recognition of those rights that had escaped extinguishment by governments which had operated for generations with a terra nullius mindset.  The Parliament set up a land fund for the purchase of lands on the open market for the benefit of those Aborigines who had lost their traditional lands. [14]   There is now a National Native Title Tribunal with almost 600 applications pending, half of which are going through mediation.  The government funds Aboriginal representative bodies which have their own advisers.  Professor Marcia Langton says, "What's become clear is that whereas litigation is costly and time consuming, agreement-making costs less and is more timely."

There have been more High Court cases since Mabo. [15]   Both the Labor and Liberal-National Party governments have tried their hands at legislative responses to the High Court's native title decisions. Paul Keating led the nation in espousing the correctness and decency of Mabo.  John Howard told Parliament that Mabo  "now with the passage of time, seems completely unexceptionable to me.  It appears to have been based on a good deal of logic and fairness and proper principle." [16]   The dust has settled.  The decision is not seen as a revolution but as a belated common sense piece of legal reasoning. 

Initially the mining industry was very concerned that the recognition of native title could cause a massive slowdown in mining and exploration.  On the tenth anniversary of the decision, Tim Shanahan, CEO, Chamber of Minerals and Energy (WA) said,  "Mining companies in the early days weren't as sanguine or accepting of native title. These days it's seen as part of the normal business of mining." 

The belated recognition of native title has helped to put right what two of the High Court justices described as our "national legacy of unutterable shame". [17] The High Court still has its work cut out interpreting the fine print of the excessively amended Native Title Act and filling in the detail of common law native title, providing considerable feasting for lawyers.  Indigenous communities still have their problems and we still have a national problem in reconciling ourselves.  The denial of land rights and the failure to accord equal protection and respect under the law are no longer part of the Australian solution.  That is a better starting point than the terra nullius mindset which preceded Mabo.

Justice McHugh who is the only judge who decided the Mabo case still sitting on the High Court has had cause to look back over the history of native title litigation: [18]

Other High Court judges have voiced similar concerns. [19] The issue now is not the legitimacy of land rights but determining the cut-off point for recognising native title rights when other parties also have rights over the same land, and matching the remaining native title rights with the real, rather than imagined, Aboriginal and Torres Strait Islander aspirations.  Aboriginal lawyer, Noel Pearson, says that Ônative title É is all about what is left over.  É And land rights have never been about the dispossession of the colonisers and their descendents.  Whether it be statutory land rights or common law land rights - these land rights have always been focused on remnant lands.' [20]   16% of the Australian continent is now owned or controlled by Aboriginal and Torres Strait Islander people.  And yet Graeme Neate, the President of the Native Title Tribunal, says: [21]

A country's system of land law and governance is undoubtedly more complex once indigenous land rights are recognised.  The cost of this complexity is high when a country like Australia has long delayed the recognition.  The benefits to indigenous people are less and patchy when many of the dispossessed have had no option except to live away from their lands for generations.  The complexity and patchiness provide no warrant for returning to the terra nullius mindset.

4.     Formal Equality Under the law, Land Rights and Self-Determination

Equality does not mean treating everyone the same.  If a law is to treat indigenous people differently from other citizens, indigenous people through their representatives should first give their consent and those indigenous citizens who want to receive the same treatment as other citizens should be able to opt out of the special arrangements for their own people and enjoy the usual benefits of citizenship.  Sometimes the different treatment will be an undisputed added benefit to make up for past disadvantage or to accelerate access to the benefits of life in the post colonial society.  But there are instances when the treatment is adverse to individuals on the basis of their race or membership of a particular  indigenous community.  Their individual rights are to be foregone for the common good.  The limits of self-determination for a community are now set when an individual claims not only the entitlements of community membership but also the human rights recognised in international instruments.  The giving of young women in traditional marriage may be an integral part of traditional land holding arrangements but such practices must yield when a young woman wants the right to choose her husband.  Traditional punishments such as spearing may assist elders maintain public order, but the elders must surrender their authority when a young man insists on a trial in court and a punishment in jail. 

If there still be a case for traditional marriage or traditional punishment, that case should be put by Aboriginal representatives who are attentive to the concerns of young Aboriginal women who want to choose their own husband and of young Aboriginal men who would prefer jail to spearing.  Though these traditional practices may tie all community members to their land, kin and ancestral meanings, they are practices which cannot be imposed on young persons living in two worlds, many of them having watched more television episodes of LA Law and Dallas than I would ever want.

 Forty years ago, there was controversy about the wage and employment conditions for Aborigines on vast pastoral properties in the north of Australia.  Now the issue is access to social welfare payments and alcohol on Aboriginal communities.  The denial of equal wages or personal social welfare payments or the denial of access to alcohol is a denial of formal equality under the law.  Are there some social ramifications to the granting of formal equality that are so adverse to the common good of indigenous communities and the personal well-being of community members that the indigenous leaders in a self-determining community are not only entitled but also are right to forego the formal equality for their community members so that the community might advance its communal prospects?

In 1965, the Commonwealth Conciliation and Arbitration Commission was asked by the Australian Workers' Union to grant equal pay to Aborigines in the pastoral industry.  These workers lived and worked on cattle and sheep properties in the remoter parts of Australia.  The union called no evidence but simply enunciated the principle of equal pay.  The pastoralists called much evidence to demonstrate the problems and expected social effects of paying equal wages.  Many Aborigines had lived on pastoral properties which were their traditional lands, receiving minimal pay for what the pastoralists regarded as minimal work.  No Aborigines were called to give evidence about the effects.  Sir James Gobbo who was counsel for the Commonwealth government revealed thirty years later that  when he "sought some such evidence I was instructed that there was no stockman suitable for the somewhat daunting task of giving evidence and being cross-examined".  Gobbo was deeply troubled but unable to do anything.  He was receiving instructions from two government departments.  The Department of Labour and Industry was adamant that all workers should be paid the same wage regardless of their race.  The Department of Territories  "was very concerned about the impact of equal pay because of the risk to the existing arrangements on the stations. It would result in the abrupt end to the provision of steady employment and accommodation for Aborigines." [22]

Sir John Kerr was counsel for the pastoralists.  He submitted: [23]

The Commission acknowledged that massive disemployment was the likely result of granting equal wages.  Once a stockman was unemployed, it was likely that he and his extended clan group would be moved off a pastoral lease which was on their traditional country.  The effects of disemployment would be catastrophic for these small communities who had never known life in the economic mainstream.  In its decision the Commission noted: [24]

Employers were given 20 months leeway to arrange for those Aborigines who were union members to be employed under award conditions.  As predicted, many Aborigines were turned off pastoral properties, living in fringe camps on the outskirts of country towns and becoming long term recipients of social welfare. 

Government initiatives including the purchase of pastoral properties for Aboriginal communities, the purchase of excisions on other pastoral properties, and preferential employment and education programs on remote Aboriginal communities have ameliorated some of the problems.  But the payment of sit down money is now judged by government and many indigenous leaders to be no solution at all.

Andrew Robb, previously the Chief Executive of National Farmers Federation and National Director of the Liberal Party, was recently elected to the Australian Parliament.  In his maiden speech, he recalled his many visits to pastoral properties in Northern Australia after the granting of award wages and land rights.  In his opinion, "The land rights legislation was a totally inadequate response to the real issueÑnamely, the collapse of personal dignity and self-esteem among many Aboriginals, particularly the young." [25]   He compared the living circumstances of Aborigines on pastoral properties before and after land  rights, before and after equal wages:

Forty years ago, no indigenous person participated in the decision or was even heard about the inevitable effects of granting equal wages.  The members of one polity made decisions about those of the other polity without consulting them.  Nowadays there is consultation.  Those of us who are not indigenous are able to spare our consciences the moral quandary choosing between conflicting goods - formal equality under the law, and government prescriptions which are race-based and race-targeted - by leaving the matter to discussion between government and indigenous leaders chosen and responsible through self-determining indigenous procedures. [26]   But then we are troubled by the voice in the wilderness of other indigenous leaders who proclaim that their indigenous opponents have no option than to do the government's bidding if they are to breathe the scarce political oxygen available for indigenous leaders in a society which has grown weary and doubtful about even medium term solutions for the plight of marginalised indigenous community members.  It is even more troubling when government and/or the media decide which indigenous leaders will be given airplay regardless of their mode of selection as leaders or spokespersons.  Indigenous leaders need credibility in both polities - the indigenous community and the mainstream society.

5.     The Contemporary Problems of Indigenous Communities

In 1981, I was junior counsel in an Aboriginal murder trial in Queensland.  Alwyn Peter was the 15th Aboriginal male in three years to have killed another Aboriginal person on an Aboriginal reserve.  In these cases, the victim was usually the accused's woman partner.  The senior defence counsel told the court that the homicide rate was the highest recorded among any ghetto group in the western world.  In each case, the accused and the victim were shaped by life on a reserve; and each in their own way was destroyed by it.  To be a member of such a group, one did not have to be bad or mad; one had only to be Aboriginal.  We defence lawyers had a good win in the Peter case.  Having pleaded a defence of diminished responsibility, Alwyn walked free within weeks of the completion of the court proceedings.  A woman anthropologist left me with the chilling observation that our forensic win had removed the one inadequate protection for defenceless women in remote Aboriginal communities - the minimal deterrence of the whitefella legal system.   Meanwhile I was privileged to receive the last letter that the anthropologist W E H Stanner ever wrote on 4 October 1981, he having been our key anthropological witness:

I am fascinated by the question: how do general ideas about human conduct change so quickly?  I can recall about fifty years ago appearing as a witness for the defence in an Aboriginal murder case in Darwin before Wells J.  He was notably unimpressed by my arguments but nevertheless reluctantly took them into account in mitigation, while looking round the court as if expecting trouble.  Or do I mean 'remarkably quickly'?

 For the last twenty years, I have been preoccupied with the interrelatedness of  Aboriginal dispossession, disadvantage and marginalisation and I have sought to articulate a publicly coherent policy of reconciliation, justice and recognition for indigenous Australians.  I do not come with the answers.  Recently, Noel Pearson, one of the most prominent Aboriginal spokesmen in Australia has opined that it was the "symptom theory" that underpinned our approach to the Alwyn Peter case.  Pearson says: [27]

These are troubling conclusions for any lawyer committed to justice according to law for all persons, including indigenous Australians who are more likely than any other group to be appearing in court for a custodial sentence.  Once again, the proper application of law, including formal equality under the law, and the criminal law's attention to all relevant factors in the mitigation of punishment, may have unintended and negative consequences for the public order or common good of indigenous communities while displaying an admirable commitment to the human rights of the individual.

Life for the contemporary indigenous person is a life of choice and diverse possibilities.  Law and social policy should provide the possibility of a realistic choice on a spectrum of possibilities from the pursuit of a traditional lifestyle on traditional lands to fully integrated participation in the social, economic and political life of the nation state while maintaining cultural traditions and perspectives.  In Australia, the resurgent opponents of land rights and self-determination think the former is not an option;  thus this is an unreal choice, or at least a very cost ineffective choice.  They argue for laws and policies which provide no option but accelerated access to the benefits of mainstream society or to the modern lifestyle which is not contingent on traditional cultural trappings.

Indigenous Australians may hold a secure title to 16% of the land mass but their living conditions are still terrible.  Twenty years ago, conservative politicians such as Sir Joh Bjelke Petersen were expressing concern that the granting or recognition of land rights would result in Aborigines being more removed from and less responsive to the health and education services of the mainstream community.  At first, Sir Joh refused to discuss the possibility of land rights with the Commonwealth government. [28]   He thought the Commonwealth's legislation in the Northern Territory in 1977 was "carelessly introduced" and he was concerned that the granting of land rights and self management to Aboriginal communities in remote parts of Northern Australia could contribute to social isolation.  In Queensland he was particularly critical of the Uniting Church which had encouraged Aborigines in their aspirations to return to traditional country setting up outstations "many miles from conventional facilities such as hospital, schools, etc, where reversion to the Ôtribal' pattern of life was encouraged: [29]

These concerns are now being voiced by many indigenous leaders, not to decry land rights but to plead for government intervention aimed at improving the health, education and employment prospects for Aborigines and Torres Strait Islanders living on their remote communities or seeking a life for their children in the urban areas of Australia.  The children and grandchildren of Milirrpum, Mungurrawuy, Eddie Mabo, David Passi, and Alwyn Peter want to live in the best of all possible worlds, being Aboriginal but open to all the world has to offer, not being swamped by it, being able to stay afloat, able to make sense of it, able to embrace the mystery of it, even able to shape it, and to hand on to their children the uniqueness of their cultures and the universal possibilities of life in the modern world.  Land rights secures the place for this to happen.  The option of self-determination expands the possibilities within the limitations of the sovereign nation state.  In Australia, life in the mainstream with some limited preferential access to a secured land base may turn out to be the preferred option for most Aborigines as well as for government.  This will be an improvement on life in the mainstream with no secured land base addressing the historic dispossession.  It will be different from living the life of a sovereign indigenous people, but with colonisation that was never an option.  It may also be very different from life on a self-determining community choosing the best of both lifestyles.  This has appeal and possibility only for a minority of contemporary indigenous Australians.  It must remain an option.  Bridging the gap between life in two polities, under two laws, is the contemporary indigenous reality.  It ought be recognised and respected by the state.

6.     The Challenges of the Future

Once a land base is secure, how do government and indigenous leaders find the balance between the individual rights of the indigenous community member and the collective entitlement of the community to order its affairs for the common good and cultural survival?  Man does not live on bread alone.  Man does not live on land alone.  Aboriginal identity is tied to land, family, and the ancestral world of "the Dreaming".  Unemployment, underemployment, alcohol and substance abuse are enormous problems on indigenous communities.  Years ago I was riding in a four wheel drive truck in the Pitjantjara lands of South Australia after a big land rights meeting.  On the back of the truck sat some Aboriginal youths huddled in blankets sniffing petrol.  I wanted to stop the truck and do something.  But what?  One of the white community advisers told me that petrol sniffing was a legitimate expression of self-determination for a marginalised people without job prospects.  These kids were addling their brains as we drove home.  When parents do not take action, what role is there for indigenous leaders in co-operation with government to stop the truck and take action?  Prime Minister Howard says: [30]

Howard thinks "we ought to be listening a lot more to those who believe that self-responsibility and personal empowerment in Aboriginal communities and the end of the welfare mentality is essential before we bring about a profound change for the better."  But how is this to be done in the modern democratic state? 

The Australian government and some of the more willing indigenous leaders have seized upon the idea of "mutual obligation".  Under the first and most  publicised mutual obligation agreement, the Mulan community in Western Australia agreed with government that parents and community leaders would attend to child hygiene and government would pay the cost of installing new petrol pumps.  Aboriginal leader, Patrick Dodson sees resonance between a conservative government's notion of mutual obligation and the traditional Aboriginal notion of reciprocity.  But Dodson warns: [31]

Many advocates for indigenous rights bemoan the fact that indigenous leaders are not more united in their stand for land rights and self-determination.  But a leader of an indigenous minority in a previously colonised society needs to act like an international statesman attentive to the domestic and international constituencies.  In the politics of international relations, it has long been accepted that there are realists, liberals and idealists.  The realist is pessimistic about human nature and believes that the struggle for and exercise of power is central.  The realist plays the government at their own game.  The liberal "contends that realism has a stunted vision that cannot account for progress", and the idealist "illuminates the changing norms of sovereignty, human rights and international justice".  In Australia, an indigenous leader like Noel Pearson has a strong realist strand in his thinking, action and advocacy.  He deals with the government of the day.  He uses their rhetoric and meets them on their ideological ground, seeking political leverage and real outcomes for his people.  In 1993, he eye-balled Paul Keating on native title.  Now he meets John Howard on mutual obligation.  He says: [32]

With a more liberal strand, an indigenous leader like Pat Dodson will work within the limits set by government but insists that there is a broader agenda which is incomplete.  Dodson says: [33]

Idealists demand that government play their game.  An idealist like Michael Mansell insists that Aboriginal sovereignty is non-negotiable. Mansell says: [34]

As in international relations, the realist, liberal and idealist perspectives all have their contribution to make "providing the vocabulary and conceptual framework to ask hard questions of those who think changing the world is easy". [35]  

While Australia's indigenous leaders are seeking a way forward for their people in the short and long terms, the academic historians have been at war interpreting and re-interpreting the conflict and meeting between Aborigines and the colonisers.  Following the publication of Keith Windschuttle's The Fabrication of Aboriginal History [36] , Stuart McIntyre published The History Wars [37] and has now edited a collection entitled The Historian's Conscience: Australian Historians on the Ethics of History. [38]  Greg Dening writes an essay in the latest collection entitled "Living with and in deep time".  He recalls the celebration at the National Library in Canberra when two items of Australian heritage were placed on the Memory of the World Register.  Those items, joining documents from other countries such as the Magna Carta and the US Declaration of Independence, were not the Australian Constitution or even the batting records of Donald Bradman, but rather Captain James Cook's journal from the Endeavour voyage of 1768-1771 culminating in his hoisting the flag on Possession Island, and the papers relating to Eddie Mabo's case in the High Court.  Dening describes the reverence with which he donned the cotton gloves to peruse these documents in the Manuscript Reading Room of the library.  He takes up Eddie Mabo's drawings of his land and his people.  This file "needs a slow, slow read".  Dening says this file is Mabo's "expression of how deep time has left its mark on the present."  Here is Dening's evocative description of his reading of these papers: [39]

Though land rights and self-determination provide no utopia for the contemporary indigenous Australian community, they have belatedly put right an ancient wrong.  The cost and inconvenience are unavoidable.  Terra nullius is no longer an option. The Australian novelist Tim Winton reminds us, "The past is in us, and not behind us.  Things are never over." [40]   The words of Chief Justice Marshall in Johnson v McIntosh still ring out today: [41]

We Australians belatedly have come to the right starting point on an endless search for justice between indigenous and non-indigenous citizens.  Though it is no longer fashionable or politically correct in Australia, there is no getting away from Prime Minister Keating's insight that we white Australians must start with an act of recognition: [42]

These sentiments should rightly continue to haunt all citizens of post-colonial societies where indigenous people "united by force to strangers", still live on the fringes. With a confident identity and secure sense of belonging in both worlds, indigenous people might "gradually banish the painful sense of being separated from their ancient connections".  Those citizens who are recent migrants are joined with the descendants of the colonisers, accepting the national responsibility of correcting past wrongs so that the descendants of the land's traditional owners might belong to their land, their kin and their Dreaming in the society built upon their dispossession. While we continue to blame the victims, we are haunted by Andrew Robb's observation from the opposite side of the parliamentary chamber echoing the Keating declaration.  In his maiden speech to the Australian parliament, Robb said, "We have basically poisoned recent generations; poisoned their bodies with alcohol and other substances and poisoned their spirit and self-belief with handouts and welfare dependency." [43]   Land rights and self-determination are necessary but insufficient antidotes for indigenous minorities wanting to belong in post-colonial societies coming to terms with their history.  Just because the indigenous people amongst us also need work and education, that is no reason to deny them their land rights and self-determination.