Parsons, David --- "Book Review - Your Land is Our Land: Aboriginal Land Rights" [1985] AboriginalLawB 28; (1985) 1(13) Aboriginal Law Bulletin 16

• Book Review-Your Land Is Our Land Aboriginal Land Rights

---

Book Review -

Your Land is Our Land
Aboriginal Land Rights

by Kenneth Maddock

Penguin Books, Ringwood, Victoria

1983. 209pp.

Reviewed by David Parsons

This book was intended as an objective assessment of the land rights issue. While no significant conclusions are drawn by the author, apart from the fact that land rights is a complex area and 'that each generation will give answers of its own', it is a useful gathering of factual information concerning some aspects of land rights, particularly in the Northern Territory.

The first argument for Aboriginal land rights examined by Maddock is that based on prior Aboriginal sovereignty. This argument has never been accepted in Australian law, it being held that before European settlement, Australia had no law, was 'desert and 'uncultivated', and was therefore open to occupation. Maddock in chapter two discusses two cases where arguments bases on original Aboriginal sovereignty were used. These were the cases of Paul Coe against the Australian and British governments in the High Court in 1977, and the case of Milirrpum and the people of Yirrkala against Nabalco and the Commonwealth Government in the Supreme Court of the Northern Territory in 1970 and 1971. Both cases were lost and Maddock explains how and why, with reference to similar cases of Maori and North American Indian peoples. Nevertheless, the argument of prior Aboriginal sovereignty is not completely spent, as Maddock shows, although he seems to believe it has emotional rather than logical or legal weight. Generally, attention has focussed on land rights within the system of Australian law.

The author goes on to discuss the various attempts by anthropologists, lawyers and the Woodward Commission to define Aboriginal ownership of land in the Northern Territory in European terns. The difficulty inherent in that process is explained in chapter four. He goes on further to describe the process of making a claim to land in the Northern Territory. Unfortunately he draws on too few examples and fails to explain how the process works in practice. Similarly he fails to discuss a range of other problems including the current lack of resolution of a number of claims. (There is also a rather extensive discussion of Aboriginal social organization which will be difficult for those without background knowledge of anthropology).

Maddock's argument tends towards it conclusion that whilst the land claim process is difficult, Aborigines are or soon will be successful in having their lands resorted to them. Unfortunately that is a wrong conclusion as indeed is his statement that:

'Ours is a moment of transition between the heroic period of struggle for rights and a mundane, less exciting period in which people settle down to live with those rights'. (p.2)

In fact there are presently at least ten land claims awaiting resolution and in only a small percentage of roses have Aborigines seen the title deeds in their hands. For example, while the Finniss River claim was completed in November 1980, and was successful in respect of thirty per cent of the land applied for, the claimants still do not have title to their land. They await the outcome of negotiations between the Northern Territory and the Commonwealth Governments and other interested parties on a variety of issues. The Alligator River Claim was completed in March 1981. It is still being pursued through the courts by the uranium mining companies Peko and EZ. No title will issue to the claimant until the courts have made their ruling and even at that stage the Minister will have discretion as to the actual granting of the 403 square kilometres of land to the claimants (eight percent of the land claimed). Maddock should have pointed out that restoring land to Aborigines is neither a neat nor simple matter. It is only the beginning of a vast range of negotiations and meetings – all the trappings of white ownership and white responsibilities are passed on with the title. For people skilled in commerce, finance and the workings of governments, this process is daunting. It is so much more so for Aboriginal people who have had little if any opportunity to acquire those European skills. Maddock’s simple rendition of what is in the Land Rights Act of the Northern Territory hardly does justice to the enormous complexities and the inevitable disruption to Aboriginal people and their live the Act creates. Indeed I would have thought the views of Aboriginal people involved in the claims would have been sought by the author who, after all, presents his work as an objective treatment of land rights. It is certainly not sufficient to simply concluded, ‘to reduce the responsibilities would be to reduce the rights’.

The chapter on sacred sites is one of the better parts of the book. Maddock does point out, although briefly, that sacred sites are real, not merely mining company paranoia, and most importantly, that features in the Aboriginal landscape are named and that there is nothing surprising in this. The importance of a site clearly depends on the eye of the Aboriginal beholder. Aboriginal people very seldom ask Europeans to believe in their places, but they do seek respect for them. I am very wary of comparisons such as Maddock draws on page 150 between the regard Christians have for Sunday as a sacred day and Aboriginal concern about sacred sites: no one has ever attempted to blow up Sunday or any part of it.

The final two chapters attempt to draw the disparate threads together. Maddock first notes the difficulty mining companies have in securing anthropologists' advice with which to oppose or, as the Northern Territory Government puts it, 'test' land claims. He then talks briefly of mining and draws attention to the amount of royalties payable under the agreement made between the Northern Lands Council and Pancontinental. He concludes earlier but in the same vein:

'by the end of the decade we should be able to see the shape things are taking. Great areas will have been explored for minerals, new mines will have started, tens of millions of dollars will have found their way into Aboriginal hands - with tens of millions more to follow'. (p.7)

This is of course arrant nonsense. It is the kind of statement from an apparently authoritative source that causes such great problems and misapprehension - even among the best intentioned.

The distribution of mining royalties is very strictly set out in the Land Rights Act. Maddock does not refer in how the money is spread amongst many thousands of Aboriginal people who in my experience, apply the money to the building of essential services such as roads, shelter, communication facilities, schools -services provided without anon by governments as a normal part of European living. The first thing that the Kakadu people did when they received royalties from Ranger was too build a school and then employ a teacher and a nurse. In any event, the government ensures a distribution such that most of the money from any mine (and there are only two producing any significant royalites in the Northern Territory) is distributed amongst the 25.000 Aborigines in the Northern Territory. It is unfortunate that Maddock speaks of mining company fears and the 'added cost of mining operations' without a word from Aboriginal people on the subject.

Maddock's 'objectivity' results in some rather unusual statements. This is to be found in the penultimate paragraph:

'It may be an advantage of our property law that it can stretch to accommodate claims originating in an utterly different system'.

It is an interesting conclusion in view of Maddock's argument in chapter two which is devoted to showing how our property law prevented Aboriginal claims until the Land Right Act 1976 when a means of restoring lands was found. He goes on, 'conversely under modern circumstances it is a defect of the Aboriginal system that it does not seem able to absorb the foreign demands to which it must bow'. I am not at al l sure what flows from that statement. Maddock concludes, 'Each generation will give answers of its own as it struggles with an issue that is both permanent and insoluble'.

The book suffers from an almost total absence of the Aboriginal view of land rights. Its conclusion reflects the fact that the author has not explored land claims and their efforts deeply enough to understand the problems; the issue is not 'insoluble', but it does need to be understood before solutions can be found. In so far as it outlines some areas of the debate, the book is useful.

(Reprinted with permission from the reviewer. This review appeared in ARENA, No. 66, 1984).