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Aboriginal Law Bulletin --- "Editorial - A Celebration of Powerlessness" [1985] AboriginalLawB 14; (1985) 1(13) Aboriginal Law Bulletin 2


Editorial - A Celebration of Powerlessness

The Editors have chosen to publish the following commentary as a guest editorial. The article was the editorial for The Age newspaper on Friday, 8 March 1985.

We believe that this editorial addresses many of the significant issues in the -current land rights debate. We invite readers to respond to the views. advanced by The Age.

In December 1983, the Federal Government promised to develop, by the bicentenary year of 1988, principles for reconciliation between European Australia and Aboriginal Australia. It has failed. The formula - or preferred basis - adopted by Cabinet recently, and now open for public discussion, betrays the Aboriginal cause the Labor Party claims to espouse. It lays the basis only for reconciliation of the Government with mining interests and with those state governments antipathetic to Aboriginal rights. Some blame will be placed in the Minister for Aboriginal Affairs, Wr Holding, for raising the aspirations of Aborigines too high. He did not. The five principles outlined in 1983 were about nothing more and nothing less than justice.

There were however, mistakes and niscalculations by the Government in he attempt to give shape to the principles. Not nearly enough attention was paid to the abysmal lack of awareness of the white community about what vas done to Aborigines in the name of white superiority or of nation-building. Not enough was done to destroy the ugly myths, myths partly developed in he past as a shield from guilt. Not enough was done to counter the outrageous misinformation put about concerning the ambit of Aboriginal claims, and their attitude to, for instance, mining. And now the Government has shown extreme cowardice in the face of public pinion, the mining lobby and a Labor government in Western Australia ready to sacrifice principle. For some Aborigines, the Labor formula means dashed hopes; for others, the grand irony of having to defend legislation passed by iberal governments against the proposals of their alleged champions; for all Aborigines it will be a grave psychological blow, for land rights - on a proper basis - have become the great symbol of their survival, regeneration and emergence from 200 years of trauma.

And for European Australians – what do land rights mean for them? Some argue that the land rights campaign is emotional blackmail, an attempt to make today’s generation pay for the wrongs of early settlers and administrators. Others say land rights are divisive, that we are one nation and one people. But it is a nation founded on injustice. Only 49 years after the First Fleet arrived, the British House of Commons select committee on Aborigines, reviewing what had been done to Aborigines with the advent of European civilisation, found that Aborigines had an incontrovertible right to their own soil, a plain and sacred right, however, which seems not to have been understood. The committee reported that 'their land has been taken away from them without assertion of any other title than that of superior force'.

That right has not diminished over the decades and the effects of that injustice are manifest in city ghettos and outback settlements. There are men alive who saw their people shot in 'punitive' expeditions, there are children who destroy themselves sniffing petrol. On any index - health, employment, education - Aborigines are the most deprived Australians. The nation is, in fact, divided not by land rights but by the lasting impact of that first denial of any rights to Aborigines. The granting of land rights now will work no miracles. But land rights will restore self-determination if Aborigines have proper control over the land. They will restore dignity. And they will help to make this nation a special one with a unity springing from the granting of opportunity forgreat diversity. It is stupidity, verging on obscenity, to compare land rights with apartheid the forcing of people into homelands', the denial of political rights and citizenship. Yes, permission would have to be obtained to visit Aboriginal lands, but thousands of European owned properties throughout Australia carry signs ‘Trespassers will be prosecuted’ and try walking casually on to most mining sites.

It is difficult to see how there could be any foundation for complaints from white interests about the availability of land suggested under the Government's formula as open for claim. The formula states unequivocally that all private land in Australia is off limits. So is land set aside for public purposes. Aborigines may claim Commonwealth national parks only if they agree to their continued use as national parks. They may claim former reserves and missions and vacant Crown land ‘which is unused and unallocated for other purposes’. Most of the latter categories are in the most inhospitable parts of Australia - marginal land, desert, dirt too poor to support sheep or cattle; land unwanted by Europeans. But under it may be minerals - and there's the rub; miners' rights versus Aboriginal land rights.

The matter was addressed in two independent inquiries. Justice Woodward, in a report which laid the basis for the 1976 Northern Territory land rights legislation, wrote: ‘ I believe to deny to Aborigines the right to prevent mining on their land is to deny the reality of their land rights. Then Mr Paul Seaman QC, a decade later, reported that ‘there is no compelling economic reason why Aboriginal communities should not have control over mining or petroleum activity on Aboriginal land.’ He went on to say that he did not automatically equate the mining industry's interests with those of the state or the community. Of course, miners do, and so do many politicians (although some of them under the heavy lobbying of miners).

An outright Aboriginal veto on mining is emphatically ruled out. But the Federal Government's alternative is, in the end, totally unsatisfactory. It would set up a tribunal to hear disputes between Aborigines and miners, but this tribunal would make only recommendations to government. Imagine the reaction of, say, a Bjelke-Petersen government to a recommendation which favoured Aborigines and consider how vunerable other governments would be to lobbyists. The proper model is in South Australia's Pitjantjatjara legislation which puts disputes before a superior court judge. The judge must take into account the effect of mining on the way of life and culture of the Pitjantjatjara, their interests and freedom of access, the suitability of the applicant and the material, environmental and economicsignificance of the proposed development to the state and toAustralia. It is the judge's decision.

Perhaps, in many instances, matters would not even go to such a tribunal.

Time and again Aborigines have demonstrated that, far from being antimining, they are anxious to cooperate. Some have formed their own companies; others have lobbied against Federal Government policy blocking uranium mining. Delays in ventures in the Northern Territory are caused overwhelmingly by administrative flaws, not by black antipathy. But it is essential that Aborigines have access, in the event of disputes, to a process in which they can be confident justice can be done. The Federal Government's proposal gives no basis for that confidence. TraditionalAborigines will feel themselves at the mercy of politicians on this central matter their abilityto protect their land, the land which is the source of their culture and their identify. The bicentenary would then be for Aborigines a celebration of 200 years of powerlessness.

(reproduced with permission. The Age)


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