Wilkie, Meredith --- "Victorian Compensation - Report upon the Inquiry into Compensation for Dispossession and Dispersal of the Aboriginal People: Victoria" [1985] AboriginalLawB 17; (1985) 1(13) Aboriginal Law Bulletin 4

• Victorian Compensation Report Upon The Inquiry Into Compensation For Dispossession And Dispersal Of The Aboriginal People: Victoria

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Victorian Compensation

Report upon the Inquiry into Compensation for Dispossession and Dispersal of the Aboriginal People: Victoria

by Meredith Wilkie

The Victorian Aboriginal Land Claims Bill (circulated as a discussion document (and rejected by Aboriginal communities) in 1983 did not contain any reference to funding for land claim purposes. This was in contrast to the New South Wales Aboriginal Land Rights Act passed in March 1983 which incorporated a funding ackage: 7.5% of annual State land tax collections for a period of fifteen years to be controlled by the New South /ales Aboriginal Land Council.[1]

Victorian Premier John Cain promised that funding would be considered separtely from land rights legislation. Accordigly, a reference was given by the Social Development Committee of the Victorian Parliament (Chair, Graham Ernst) in December 1982. In its Report of October 1984, the Committee makes clear that its recommendations on funding should be icluded in land rights legislation.

The Committee was asked:

To inquire into, consider and report to Parliament, on the steps, including special forms of assistance or benefit, desirable to ameliorate the effects of the dispossession and dispersal of the Aboriginal people and in patricular to make recommendations in respect of –

(i) constitutional responsibility having regard to the amendment to the Commonwealth Constitution consequent upon the 1967 referendum;
(ii) legal responsibility having regard to the 1974 Agreement transferrring Aboriginal affairs responsibilities from Victoria to the Commonwealth;
(iii) the desirability of a uniform national approach to the issue;
(iv) the most desirable form or forms of any such assistance or benefit, including the criteria for eligibility, having regard to equity;
(v) the relationship of land rights to any forms of assistance or benefit and any special provisions which should be incorporated in Aboriginal land rights legislation;
(vi) the most desirable manner of administration having regard to the principles of Aboriginal self-determination and self-management and to Aboriginal culture;
(vii) the sources of anyspecial assistance or benefit having regard to justice and equity.[2]

The Committee's recommendations that, among other things, the State of Victoria should continue to share responsibility for Aboriginal affairs funding with the Commonwealth, that each local Aboriginal community should decide its own priorities regarding the forms of benefit most appropriate to its needs, and that a respresentative Land and Compensation Council be established to administer the funds to be made available, are best left to Victorians themselves to assess. I would simply point out that all, with this Report, is not what it would seem.

The Committee's terms of reference, which speak of amelioration, do greater justice to the content of the recommendations than does the title of the Report: Compensation for Dispossession and Dispersal of the Aboriginal People. The idea of compensation implies that the amount of compensation is calculated by reference to what has been lost, while amelioration is concerned to ease a current situation. Australian authorities, no doubt bolstered by the Gove Land Rights decision[3] of 1971, have so far failed to acknowledge that Aborigines have a right to be compensated, in the true sense of that word, fully and fairly for the loss of their land and sovereignty as well as for the results of that loss.

The Victorian Committee certainly accepts that ‘Aboriginal people as a whole have suffered or been disadvantaged as the result of dispersal and dispossession.’[4] It is noted at the outset that the Committee accepts the assumptions underlying the terms of reference and does not, therefore, debate that Aborigines in Victoria have been dispossessed and dispersed.[5] Nevertheless, it gives some substance to these terms, as it uses them in the Report, by defining them in an appendix. Dispossession 'describes the effects that the European settlement of Victoria had, and still has, on the Aboriginal people. It is the process and end result of European settlementwhich tookover land occupied by Aborigines, often through violent means, and without provisions for adequate negotiation, bargaining, treaties or compensation, and the subsequent treatment of the Aborigines by the settlers.[6] Dispersal is ‘a process concurrent with dispossession, involving Aboriginal tribal groups being scattered and fragmented, and families separated.’[7]

The way in which dispossession is defined flavours the philosophy of the Committee's recommendations. Aborigines are admitted to have 'occupied' the land, but not to have 'owned' it. Although Justice Blackburn in 1971[8] decided that'ownership'did not accurately describe the traditional relationship of Aborigines to land, numerous political affirmations of the nature of that relationship since that time have taken much of the sting out of that, much criticised, view. In 1975, for example, the Australian Senate unanimously adopted a motion drafted by then Senator Neville Bonner urging the Australian Government 'to admit prior ownership' by the indigenous people. The New South Wales Land Rights Act of 1983 states in the preamble that New South Wales 'was traditionally owned and occupied by Aborigines'.

Moreover, the use of the words 'settlement' and 'settlers' when referring to the occupation of Victoria by Europeans implicitly denies the fact and ramifications of conquest. Thus the definition of 'dispossession' adopted by the Committee strips some of the legitimacy from the Aboriginal demand for compensation by implying that the value of what they lost is less than they claim and that they lost it in a less brutal manner than they claim, and by asserting that the taking was not illegal. Thus, the 'compensation' offered can be reduced to such amount as might 'ameliorate' the present, and perhaps future, effects of dispossession. Is not the Committee really acknowledging a current social problem and adopting a not-too-novel way of dealing with it? Aborigines have always been at the bottom of every poverty index and governments have usually treated the problem as one of welfare. The solution proposed does not change its essential character by being gift-wrapped in words such as 'land rights; 'compensation' and 'self-determination'. Not when those concepts have no influence on action taken. Not when action is still referable only to the amelioration of a current problem of poverty and marginalisation.

The almost disinterested approach of the Committee to the question of compensation is highlighted in its vague recommendations on funding. Four principles, it was proposed, should guide the Government:

1. all taxpayers should bear the cost of funding for compensation;
2 both theStateandFederal governments should bear the responsibility of providing finance for benefits for theAboriginal people; "
3. the benefits of compensation should extend for more than one generation; and
4. anappropriate guidelineforthe funding of compensation in Victoria is a guaranteed minimum annual amount of $5 million, indexed for inflation.'[9]

Besides money, compensation is to take the form of land and the'reaffirmation of the value of Aboriginal culture.’[10]

But let me return to my theme. True compensation fordispossession, compensation which recognises Aboriginal traditional ownership and the illegality of dispossession by Europeans, should be calculated under a number of 'heads of damage':

a) loss of the use of the land since the time of taking;
b) loss of non-daimable land;
c) damage to any land transferred (e.g. by mining, cutting of forests);
d) an accounting for improperly made profits (i.e. surfacee and sub-surface resources used); and
e) injury to Aborigines personally, including damage to cultural integrity, lifestyle and social cohesion as well as loss of sovereignty,:all as a direct result of dispossession.[11]

When calculated in 1985 dollars, that part of the loss which is capable of quantification would render a verysubstantial money sum. Deductions could be made for improvements, if any, to land transferred to Aborigines and for the provision of benefits or services to Aborigines over and above what is provided to others. Moreover, the form of compensation need not be solely in money; but could include land; the extension of special services or the recognition of additional rights[12]. For a recent example see Brad Morse's description of the COPE settlement in Canada in the February 1985 AboriginalLB.

Recent Labor governments have consistently disappointed supporters, and the fair expectations of Aborigines, by failing to admit the liability of white Australians now to compensate Aborigines throughout the country for the loss of .their land. An analysis which demands compensation in money and land calculated by reference to what has been lost and freely negotiated by Aborigines themselves has been criticised as ignoring the current 'political reality. But the harsh political reality in Australia today is that white Australia grows rich and secure as a direct and very profitable result of. the shameless violent theft perpetrated by our forbears and perpetuated today by ourselves. Such theft is condemned by the law of nations. Similar dispossession is nowbeing properly compensated both in Canada and in the United States. This is the political reality which we in Australia are no longer able to ignore.

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[1] Aboriginal Land Rights Act (NSW) 1983, s.28

[2] Social Development Committee, Report upon Inquiry Into Compensation for Dispossession and Dispersal of the Aboriginal People, Victoria, Government Printer, 1984, at pp. 1-2

[3] Milirrpum v Nabalco Pty Ltd (1971), 17 FLR 141.

[4] Social Development Committee, op. cit., at p. vii.

[5] Id., at p. 3.

[6] Id., at p. 39.

[7] Ibid.

[8] Note 3 above

[9] Social development Committee, op. cit., at p. 37.

[10]Id., at p.25.

[11] Bradford W. Morse, ‘Submission to the Government of New South Wales in Response to The Green Paper on Aboriginal Land Rights in New South Wales’, in Aboriginal Development Commission, Comments on the NSW Government Land Rights Proposals, Canberra, 1983, at p. 11.

[12] Ibid