Reynolds, Henry --- "Native Title and Pastoral Leases" [1996] AboriginalLawB 70; (1996) 3(85) Aboriginal Law Bulletin 14

Native Title and Pastoral Leases

By Henry Reynolds

The Land Rights (NT) Act 1976 (Cth), the Mabo [No. 2] judgment of 1992 (Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1) and the still to be determined Wik case (see `Effect of pastoral leases in Queensland: Wik Peoples v State of Queensland &Ors' by J Fitzgerald in Vol 3, 78 Aboriginal Law Bulletin 28) are the three defining events of the struggle for Indigenous land rights in the last quarter of the twentieth century. The first transferred Crown land to traditional owners; the second recognised native title and overthrew the doctrine of terra nullius as far as property was concerned; the third will determine whether pastoral leases extinguish native title.

Much, then, is at stake in the Wik case. Aboriginal communities contend with powerful industry groups and hostile governments--State, Territory and Federal--about the future status of the vast range lands covering over 40% of the continent.

That outcome will also define the real significance of Mabo [No. 2]. If the Court decides that native title has survived in some form, Mabo [No. 2] will be seen as a truly decisive moment in the decolonisation of Australia--a late-twentieth century answer to the nineteenth century occupation of the pastoral lands of north Australia.

If the decision goes the other way, then Mabo [No. 2] will be seen to be a hollow thing--more gesture than reality--a ruse designed to make Australian law look good and the Australian community feel good about itself without giving anything of substance away; a cleansing of the conscience; a washing of the hands.

In Wik, then, great forces meet and battle over a deceptively simple question:has native title survived, or has it been extinguished on pastoral leases?

Arguments for extinguishment are straightforward, narrow and legalistic.

A lease by definition gives exclusive possession for a set time. Exclusive possession necessarily extinguishes native title. Once extinguished it is lost forever.

There is no need to prove that governments exhibited a clear and plain intention to extinguish--the mere issue of an instrument called a lease is sufficient. It is an argument elegant in its simplicity and brutal in its intent. The tight internal logic lifts the argument into extreme positions.

Leases once issued--even for as short a time as a day--dispossess. Even if the lessee failed to meet the terms of the lease. Even if the lessor never visited the land in question, never set foot on it, never ran a beast on it. It is the law as a long range missile. Consider for a moment what that word `extinguishment' can mean when it hits the ground and explodes.

At the stroke of a pen in Brisbane or Perth or Adelaide, Aboriginal communities ceased to own their ancestral lands--which they had lived on, and in, and with, for many thousands of years. They became trespassers who could be legitimately driven away at any time on the whim of the lessee, surrendering perhaps forever those profoundly important cultural and spiritual ties with the land. Thus extinguishment opens out into genocide, in the quite specific sense as defined by the Genocide Convention of 1948. That is what is being talked about, that is the agenda, behind the restrained, deferential discourse of the High Court, the witty, brotherly banter.

The argument for extinguishment, for all its logical tightness, exists in a vacuum:lacking context, avoiding complexity, eschewing history, economics and geography. It never touches the ground. It is the world seen through a jurisprudential keyhole.

As an historian it concerns me, premised as it is on either deliberate distortion--tendentious selectivity--or, most likely, unadorned ignorance.

How, then, is the argument effected by a closer acquaintance with history, and how does the matter of extinguishment fare?

The pastoral lease has a long history in Australia. It was a quite specific instrument designed in the Colonial Office for unique geographical, economic and political circumstances. It was created for new world conditions. Drawing on the legal resources of the Imperial government, the Secretary of State, Earl Grey, had no doubt that a pastoral lease could provide for joint use by both pastoralists and Indigenous people. It was produced to meet the specific problem of lessees attempting to exercise exclusive rights. Grey referred to the mutual rights of the two parties and insisted that all pastoral leases contain a reservation providing for the rights of Aborigines to live on their land. Grey wanted to save lives and protect native title. At the same time, pastoralists had merely a right to use the land for pastoral purposes.

Grey's legacy lives. Pastoral leases in Western Australia and South Australia still contain such reservations.

Underpinning Grey's policy was an insight of great contemporary importance. Despite his distance from Australia, he concluded that pastoralists and Aborigines could co-exist on the vast open range lands--legally and practically, in theory and on the ground.

Everything we know about the history of the outback pastoral industry proves that Grey was right; that far from being incompatible, Aborigines and pastoralists developed an interdependent, symbiotic relationship.

This is extremely relevant to the question of whether the rights of pastoral lessees and those of native title holders were in `themselves inconsistent'. If they were inconsistent, Brennan J (as he then was) declared in Mabo [No. 2], `that is the end of the matter'.

Given the profound importance of the question, the truly extraordinary feature of many of the submissions and much of the debate before the High Court is the obvious ignorance of practically all participants about the nature of open range grazing, about the economics of pioneer stations, and about the Aboriginal involvement in the industry.

What is often confused is the violence used to crush overt resistance and the continued Aboriginal presence on traditional country. Once a local accommodation had been reached, if force was used, it was utilised to keep the local Aborigines on the station, not to drive them off. Success of the station was dependent on the presence of traditional owners, not their absence. The value of outback stations was not so much the broad acres, but the ready supply of extremely cheap labour--that was what made the industry viable. White labour was scarce, expensive and endlessly itinerant. Traditional owners could be depended upon because they wanted to stay on their land--they were a labour pool sunk deeply and permanently in the country.

They brought other, irreplaceable skills into the pastoral economy. Open range grazing depended on the ability to track, to live off the land, and to know the country in a profound and detailed way. For their part, the Aborigines could care for the country while they worked the cattle or shepherded the sheep.

There was accommodation in other ways as well. The cycle of the pastoral year led to adaption of the Aboriginal calendar. The Picnic Race Meetings were used for the settlement of business. The dry season belonged to the boss and the climatic events of mustering, branding and drafting or washing and shearing. With the wet, the Aboriginal camp was deserted, labour was no longer needed, and people returned to the bush to live off the land, initiate the young and restore old skills.

Such facts about the pastoral industry are not hard to come by. They should be part of every educated Australian's understanding of their past, especially as the pastoral industry has played such a central role in national mythology. It should scarcely be necessary to even raise Justice Brennan's question of whether the rights of traditional owners and those of pastoral leaseholders were incompatible. Had they been so, the history of the pastoral industry would have been very different indeed.

If the High Court determines that pastoral leases extinguish native title, we will know that the retreat from injustice will have stalled--that it was a brief field foray of limited strategic significance. Traditional owners' relationship to land will have been reduced to a tenure of unique fragility, their massive contribution to the pastoral industry ignored in the drive to impose common law doctrine. Law will have trampled on history; law will have triumphed over justice.