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Pierluigi, Claudio --- "Aboriginal Land Rights History: Western Australia" [1991] AboriginalLawB 56; (1991) 1(52) Aboriginal Law Bulletin 24


Aboriginal Land Rights History: Western Australia

by Claudio Pierluigi

The history of Aboriginal land rights in Western Australia is based on the denial of Aboriginal ownership, the systematic taking of land and encumbering Aborigines from the freedom to use and occupy the land in accordance with their traditions.

There are currently no proposals for Aboriginal land rights in WA. Instead, the State Government's policy provides three forms of tenure: a system of 99 year leases over existing Aboriginal Reserve lands; excisions of small plots of land on pastoral leases; and 50 or 25 year special purpose leases.

Aboriginal issues in WA are mainly dealt with under the Aboriginal Affairs Planning Authority Act 1972 (WA), which also includes the Aboriginal Lands Trust; the Aboriginal Heritage Act 1972 (WA); and the Aboriginal Communities Act 1979 (WA).

There is no provision for inalienable freehold title of Aboriginal land in this State. The best arrangements available are the 99 year leases over Aboriginal reserve land which give limited control to local people. These arrangements do not take full account of Aboriginal land claims or traditional ownership. In many cases the terms and conditions of these 99 year leases are not negotiated by the local traditional owners and custodians. The Ngaanyatjarra people appear to be the only group to have successfully negotiated appropriate terms and conditions. This compares poorly, for eg., with the Northern Territory where the setting of the terms and conditions is done by Aboriginal controlled organisations.

At present, the WA Mines Department objects, per se, to the granting of Aboriginal reserve status. This blanket objection is not only in relation to living areas on pastoral leases but also to other prescribed living areas. As a result, special purpose leases are becoming the main form of tenure offered by the Minister for Lands and generally include the following terms and conditions:

The future possibilities of land rights in the State rests on Aboriginal people establishing property rights according to the principles of the common law and laws of title within the Australian legal system.

There remains for Aboriginal and nonAboriginal people the dilemma of the competing claims of prior ownership and of land alienated by or under the control of the Crown. The question of its resolution was taken up, in part, in 1984 by the Aboriginal Land Inquiry Report. The Report proposed principles that were meant to be enshrined in legislation to deal with this, and other types of competing interests, as well as mechanisms to resolve disputes. Political difficulties hindering resolution of this matter remain, but are now overshadowed by economic issues.

The initial invasion of Aboriginal lands - in what became known as Western Australia - commenced in 1829 when Captain Stirling landed on Nyungar Land, (Perth). Stirling's 'colonising' instructions from the British Government were to encourage cordial relations with the Aboriginal population but to allow military action to be taken against them. On 18 June 1829, Captain Stirling stated in his proclamation that "... the safety of the Territory from Invasion and from the Attack of hostile Native Tribes may require the establishment of a Militia Force .... to assist His Majesty's Regular Troops ..."(Green in Stannage, 1981, p.80)

Tensions erupted when, in the early part of 1830, at Lake Monger, the first significant violent encounter between British forces and Aborigines took place. Battles and conflicts often commenced when places of Aboriginal significance were destroyed or fenced off and when other Aboriginal uses of their lands were being impeded by 'settlers'. The early occupation of Nyungar Land met with such strong resistance that the abandonment of the 'Swan River Colony' was seriously considered. By 1831, troops were stationed strategically around Perth and in areas of the south west.

The British Government did not formally declare war against Aboriginal people, primarily because they had claimed that Australia was a 'colony of settlement'. Aborigines became instant subjects of the King and therefore the Crown could not be at 'war' with its own subjects. However, the evidence and reality of 'war' was recorded, in early 1832, by a "naval captain visiting the Swan River who noted in his diary that that there was 'really a most awful warfare' in progress [and] a pioneer West Australian settler [who] declared: We are at war with the original owners, we have never known them in any capacity but as enemies "(Reynolds, 1987, p5)

In the early invasion period, some 'settlers' noticed inconsistencies between the British Government's policies and claims of Aboriginal land ownership. Key settlers, namely Scott Nind, Captain Baker and Robert Lyon, identified Aboriginal territorial boundaries, some of which were published. The legitimacy of Aboriginal occupancy and ownership conflicted with the proclamations of Vancouver (1791), Lockyer (1826) and Fremantle (1829) which claimed ownership by the British Crown. The British Government's position was clarified when the Secretary of State for The Colonies, Lord Glenelg, rejected Aboriginal claims in 1835, because it challenged "the Crown's right to the land [and] past, present and future reparations would make it prohibitive." (Green in Stannage, 1981, p.89)

From the 1840's, the application of British law to Aboriginal people became a contentious public issue. In question was whether Aborigines were a conquered people, or whether their traditional laws could continue within the British legal system.

British politicians and officials were determined to establish systematic colonisation processes and were searching for a "rational theory of Colonisation".(Scott 1930, pp.143-l44) Vast areas of southern WA Were 'allotted', a process encouraged to increase British immigration. The British were enticed to the 'colony' by advertisements telling potential 'settlers' of the free land grants. The idea that they may have been involved in theft and receiving stolen property was shrouded from them in the legal concept of terra nullius which promoted the view that Australia was 'unoccupied land'. (Dodson,1991)

For the next 100 years, as British occupation extended over most of WA, Aboriginal people were to face a period of 'warfare' which was intended to 'exterminate' them and dispossess them of land. The survivors were enslaved, imprisoned and subjected to comprehensive social and personal controls by the State in the form of racial segregation, exclusion laws and promotion by the State of populist racial theories of white superiority.

The earliest piece of legislation that relates to Aboriginal people in the 'colony' was an Act to Constitute the Island of Rottnest a Legal Prison, 1941. Rottnest was in fact a prison for Aboriginal men from 1838, three years before the Act was passed, until 1903 when it was closed. It has only recently (1990) come to public attention that approximately 400 Aboriginal prisoners died there and were buried in mass unmarked graves.

Much more legislation followed and Aboriginal people "...have had to live with a greater body of law than any other segment of Australian society ... all of Aboriginal life is prescribed, prescribed and circumscribed by our law." (McCorquodale in Dodson, 1991, pp.86-87)

They were subjugated to the most stringent controls through laws and regulations which effectively amounted to an 'autocratic' system of Government over them. The Aborigines Protection Act 1886 (WA) and the Aborigines Act 1905 (WA) ensured the segregation of Aboriginal people from 'colonial town and city settlements.'

By 1870 the Amangu peoples' defence of their coastal lands, to the north of the Nyungar Lands, were also overcome by British forces. Progressively, the invasion and dispossession of Aboriginal lands in the eastern and northern regions took place. The gold discoveries on the Kitja/Djaru Lands (1882) and the eastern goldfields (1892) saw the arrival of a massive influx of miners and others and the authorities responded by increasing their forces in the region to ensure an 'effective check' on Aboriginal people.

In the late 1800's, Aboriginal reserve lands were introduced under the pretence of 'protecting' Aborigines from harm. Some reserves covered large tracts of land, but were generally in areas of marginal lands, (in terms of being able to sustain large populations of people), and located in remote areas of the State. In practice, these reserves - and later the missions - were places where the conditioning of Aboriginal people was paramount, created as they were to entrench the priorities of non-Aboriginal aspirations at the expense of those that were the inheritance of Aboriginal people.

In 1894, there was the Jandamarra rebellion at Windjana Gorge in the north west followed by other violent encounters in nearby areas: the Horseshoe Creek massacre (1901), Mistake Creek massacre (1915) and the Forrest River massacre (1926). In 1927, in the wake of the Forrest River massacre, a Royal Commission to Inquire into Alleged Killing and Burning of Bodies of Aborigines in the East Kimberly was established. The high public profile of this Commission led to increasing pressure on governments to improve the circumstances of Aboriginal people. After a further unrelated Royal Commission in 1934, the Native Administration Act 1936 (WA) was introduced. It made only minor changes to the previous legislative regime and did not halt 'punitive' practices against Aborigines.

Aboriginal people were still being 'imprisoned' in 'multipurpose' institutions such as reserves and missions, or were 'slaves' on pastoral stations. Others were indentured labour for industries or living in 'refugee' camps on the fringes of towns and cities. The difficult conditions on pastoral stations in WA compounded the initial impact of the oppression and dispossession. In 1946, Aboriginal people in the Pilbara region walked off the pastoral stations in protest prompting the end of 'labour camps' on stations and, eventually, improved conditions.

However, the administration of the 'natives' by the Government was to continue until the late 1960's. The last of these 'autocratic' restrictive and controlling practices were to officially cease in 1972, when the Federal Government made a commitment to pursue a policy of Aboriginal self-determination, however, to this day, this policy has not been clearly stated nor implemented. Aboriginal land and other social issues continue to be characterised by violence, controversy and racial bias, for eg., the Laverton - Skull Creek incident (1976); destruction of Aboriginal sites at Noonkanbah (1979) and Argyle (1980); Land Rights Public Debate (1984); protection of mass grave at Rottnest Island (1990) and the Aboriginal Deaths in Custody Report (1991).

The Noonkanbah dispute in 1979 and 1980, saw the WA Government use its full force to counter Aboriginal interests and rights to control land. The Government had approved oil exploration activities which destroyed a place of significance to Aboriginal people and condemnation of its actions by state, national and international bodies did not deter it. This issue led the Australian Labor Party of WA - with. the support of the labour movement through the Trades and Labour Council - to introduce, in its State Platform in 1980, a commitment to land rights for Aboriginal people.

In 1983, the newly elected Labor Government sought to implement its policy for Aboriginal land rights by establishing the Aboriginal Land Inquiry to recommend a scheme of legislation for land-related measures to benefit Aboriginal people. An acrimonious public debate took place through 1984 and 1985. It was characterised by a prolonged campaign led by the WA Chamber of Mines and supported by conservative political parties which focussed on racist stereotypes to create irrational fear, in the wider community.

The findings and recommendations of the Aboriginal Land Inquiry, highlighted by the recommendation that Aboriginal people should have veto power over mining, were rejected by the Government in October 1984. Instead, it tried to implement its Aboriginal land rights commitment by a severely compromised Aboriginal Land Tenure Bill 1985, which was resoundingly criticised by Aboriginal people throughout the State. This Bill was later defeated in Parliament. The failure of the State Parliament to recognise Aboriginal rights was followed by the retreat of the Federal Labor Government from the introduction of uniform national land rights legislation in 1986.

In 1991, as a result of decisions regarding Aboriginal heritage protection issues in Perth and other areas of the State, the WA Parliament initiated a review of the Aborigines Heritage Act 1972. Although this has not produced any particular proposals for consideration, the Government plans to introduce, later this year, enabling legislation to establish an Aboriginal Heritage Commission. The current Act provides a mechanism for some protection of Aboriginal 'sites' of significance. The Government, in 1980, made an amendment to this Act so that it may also allow for the destruction of a 'site' - this amendment was to have an immediate impact at Noonkanbah and Argyle. Aboriginal people are seeking fair consideration of Aboriginal interests in land, improvements in the protection of places of significance and clear decision-making processes that involve Aboriginal people.

The report of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) was released in 1991. The Commission considered the social, cultural, legal and economic issues that underpin the high incidence of Aboriginal deaths in custody and the disproportionate number of Aboriginal people taken into custody. The inquiry made substantial recommendations covering a wide range of matters, including measures to achieve self-determination and to resolve Aboriginal land issues.

The Industry Commission Report, Mining and Minerals Processing in Australia, 1991, recommended a clearer definition of Aboriginal property rights and focuses on improvements in NT Aboriginal land rights provisions by suggesting that governments investigate the possibilities of transferring mineral rights on Aboriginal lands to the traditional owners. Further (at pp.67-68), it accepts - in similar terms to the recommendations of justice Woodward (1974), Justice Fox (1977), Justice Toohey (1983) and P. Seaman QC (1984) - that Aborigines should have a right to veto mineral development on their land, subject only to the normal exercise of the 'national interest' power of Federal Parliament.

Considering the recommendations of the RCIADIC, the WA Government is surely compelled to take action to bring the arrangements in this State in line with policies of self-determination and the appropriate recognition of Aboriginal land and other rights.

References:

Dodson, P., Regional Report of Inquiry into Underlying Issues in Western Australia, Vol.2, Royal Commission into Aboriginal Deaths in Custody, Australian Government Publishing Service, Canberra, 1991.

Industry Commission, Mining and Minerals Processing in Australia, Australian Government Printing Service, 1991.

Reynolds, H., Frontier, Allen & Unwin, Sydney, 1987.

Rowley, C. D., The Destruction of Aboriginal Society, Social Science Research Council of Australia, 1970.

Scott, E., A Short History of Australia, Oxford University Press, Melbourne, 1930.

Seaman, P., Aboriginal fend Inquiry Report, Government of Western Australia, 1984.

Stannage, C. T., A New History of Western Australia, University of Western Australia Press, Perth, 1981.


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