The state of the debate

CONTENTS

Introduction

The state of the debate
Dr. Tim Duncan

Federal government policies and initiatives
The Hon. Clyde Holding, M.P.

Land rights, Uluru (Ayers Rock) and the M.C.G.
Charles Perkins

The rights of indigenous populations
Rob Riley

Land rights should be equal rights
The Chamber of Mines of Western Australia

Letter to the federal parliamentary Labor Party
Graeme Campbell, M.P.

Religious traditions, mining and land rights
Hugh Morgan

T.G.H. Strehlow and Aboriginal customary laws
The Hon. Mr. Justice M.D. Kirby, C.M.G.

Select Bibliography

Appendix 1: Aboriginal land in Australia

Appendix 2: Aboriginal land tenure and population

Appendix 3: Expenditure on Aboriginal programmes*

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INTRODUCTION

Aboriginal land rights have emerged as a source of uncertainty and division in Australia.  In publishing this collection of articles, speeches and letters the author's aim is to help clarify the central issues in this increasingly important debate.  This booklet brings together the views of prominent spokesmen in government, the land rights movement, the mining industry, the legal profession and other sections of the community in order to present a range of information and opinion relevant to the land rights issue.

Tim Duncan provides an overview of the recent background to the debate.

The Minister for Aboriginal Affairs, Clyde Holding, outlines Federal Government policy on land rights, although, as Tim Duncan notes, recent events have forced modifications to this policy.

Charles Perkins and Rob Riley, both leading spokesmen for land rights, present their versions of the Aboriginal perspective.  Rob Riley's speech was delivered at an important international forum.

Hugh Morgan's speech, which produced a substantial media reaction when delivered in May 1984, represents an unusually forthright statement of the case against land rights from the mining industry.  The Chamber of Mines of Western Australia sets out other principles it believes are at stake in land rights legislation.

Government policy on land rights has aroused uneasiness and division even in the ranks of the Labor Party.  The letter by Graeme Campbell, MP., is included as an indication of this.

Granting special land rights to Aborigines depends, in part, on modern Australian law accepting the legitimacy of traditional Aboriginal law.  In the final article Justice Michael Kirby, former Chairman of the Australian Law Reform Commission, discusses the contradictions and problems the Australian legal system would encounter in recognising Aboriginal spiritual authority and incorporating Aboriginal law.

AN OVERVIEW

In December 1983 the Minister for Aboriginal Affairs, Clyde Holding, outlined the five principles on which the Hawke Government intended to base national land rights legislation.  These principles are:

• Aboriginal land to be held under inalienable freehold title
• Aboriginal control in relation to mining on Aboriginal land
• Protection of sacred sites
• Access to mining royalty equivalents
• Compensation for lost land to be negotiated

As Tim Duncan points out, the past year has seen the breakdown of bipartisan support for these principles and the emergence of divisions between the major parties (and within parties), between Federal and State Governments and in the community.  Many of the doubts that have arisen regarding land rights are based on perceived conflicts between the principles outlined by Mr. Holding and principles embodied in Australian law and convention.  These doubts cannot easily be summarised, but seven points of .conflict, distilled from several of the contributions that follow, can briefly be noted here:

• the conflict between the granting of inalienable freehold title to Aborigines, a title granted to no other Australians, and the principle of equality before the law of all Australians;
• the conflict between Aboriginal control over mining and the law applying to other citizens of the nation that landowners have title and rights only to the surface of the land and not to the minerals that lie beneath;
• the conflict between the payment of mining royalties directly to groups of Aboriginal landowners and the traditional payment of mining royalties to the Crown to be distributed throughout the whole community;
• the extent to which incorporating recognition of sacred sites into Australian law necessitates incorporating the whole package of Aboriginal customary laws, many of which appear to be incompatible with established principles in the Australian legal system;
• the conflict between the ethical basis of land grants in terms of compensation for past wrongs done to Aborigines and the principle of individual responsibility:  that guilt and culpability should only be attributable to individuals and not to collectives and that the living are not culpable for the crimes of their ancestors.  Does compensation challenge the legitimacy of European settlement and inherited institutions?
• the conflict between the protection of sacred sites and the economic losses to Australia resulting from the restrictions and delays to mining activity generated by land rights legislation;
• the conflict between uniform national legislation and States' rights.

JUSTICE AND COMPASSION

Whatever the merits of the respective cases, it should be noted that these conflicts have arisen not primarily from the granting of land to Aborigines, but from the special, even exceptional, conditions and assumptions under which land is given.  No party to the dispute should deny the need for compassion and justice in dealing with the Aboriginal issue.  The problem is to weigh up the various claims to justice and decide which policies would best serve these values.  This booklet is published as a contribution to resolving this problem.

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THE STATE OF THE DEBATE

Dr. Tim Duncan

Tim Duncan is Melbourne correspondent for The Bulletin and has written extensively on the land rights issue. In this article he examines the recent political history of the debate and discusses the causes of rising dissension over land rights legislation.

The Australian Labor party defeated the Fraser Government in March 1983 with its land rights and Aboriginal heritage platform hardly mentioned during the preceding campaign.  This came as no surprise for the parties did not fundamentally disagree.

In December 1983 the Labor Minister for Aboriginal Affairs, Clyde Holding, delivered a statement of intentions to Parliament.  He summarised the approach of the Hawke government to the rights of Aboriginals to land as that which would conform to five principles (listed in the Introduction).

These principles were neither new nor controversial for the parliamentarians on both sides of the House who listened to the Minister.  All that was new was the government's declared intention to extend to the whole of Australia the spirit of the Aborigines Land Rights (Northern Territory) Act, introduced by the Fraser government in 1976 on the basis of recommendations made in the Woodward Report of 1974.  This inquiry in turn was the product of the ALP policy platform which the Whitlam government took with it into power in 1972.

BREAKDOWN OF SUPPORT

Yet within six months of Holding's December speech to Parliament, the bipartisan approach appeared to have broken down.  After nearly eight years, despite the characteristic opportunism of Federal Parliamentary politics, the Federal Opposition and some State Governments were having second thoughts about the political wisdom of the Woodward approach.

What happened?  Broadly, controversy over Aboriginal land rights got closer to the homes of those who vote.  The debate was no longer restricted to an exotic argument between distant miners and Aboriginals over the control of apparently worthless desert.

It would be a mistake to think that the extension of the Woodward approach to South Australia, through South Australia's Pitjantjatjara Land Rights Act of 1981, led to the breakdown of bipartisanship.  On the contrary, the South Australian legislation probably represented the high water-mark for the bipartisan approach.  The Act was brought down by a Liberal government, acting in then orthodox fashion on behalf of a small but very well organised desert community.  Bipartisanship survived while the States developed their positions in isolation, and while the Federal Government left all but the Northern Territory alone.  It broke down at the moment when a Labor Federal Minister made it clear that land rights was to become a national issue, and that Canberra would attempt to impose over each State uniform land rights and Aboriginal heritage legislation.  The simple reality was that national legislation would inevitably affect more people, and where the interests of more people were involved, more people would find their situations threatened by change.  Indeed, it now seems clear that bipartisanship survived for as long as it did mainly because only the mining industry stood to lose, and the mining industry lacked significant electoral clout.

ECONOMIC PRINCIPLES

National heritage and land rights legislation, as foreshadowed by Mr Holding in his December address, involved both religious and economic principles.  The latter most obviously concerned the controls over mining together with rents and compensations deriving from such controls.  Implicit in the economic principles were two forms of discrimination:  the first, positive discrimination in favour of Aboriginals acknowledging inter alia prior occupation of land and special circumstances of social deprivation consequent upon the experience of European settlement;  the second, negative discrimination against the Crown whose normal rights to distribute mining royalty equivalents and to make decisions on the mining of Crown mineral resources were to be over-ridden.  As national legislation was now contemplated, these forms of discrimination mostly met with the approval of Aboriginal representatives.  But they loomed large over the future of the mining industry as a whole, not just the elements of it intending to explore the Northern Territory or the northwest of South Australia.

Despite the discrimination evident in the Woodward principles that Mr Holding re-affirmed, those that touched mainly on the economic sphere remained very much within the Australian political tradition.  At risk in general was Australia's relatively benign climate for mineral exploration, although in particular there was the possibility that miners would be unable to explore some areas altogether.  How much land miners might be able to explore was unknowable for the reason that access would be determined by negotiation at the local level.  Following the Woodward approach there was a built-in incentive for the granting of access, since it was envisaged that mining royalties would finance both the operation of land councils and the investment needs of local Aboriginal landowners.  But incentives to grant access by no means compare with automatic access, and Northern Territory experience had shown that access negotiations had become intolerably lengthy, costly, and open-ended.  If Northern Territory arrangements were to be extended throughout Australia then at risk to some degree was Australia's international reputation as a good bet for explorers.  Consequent upon this was the possibility that the contribution of mineral production to Australia's balance of payments might be circumscribed, thus eventually affecting the value of Australia's currency, and the standard of living of all of its population, Aboriginal or otherwise.  This part of the Woodward approach to national land rights was entirely orthodox politically, and it ranked with Australia's protection regime, its arbitration system and indeed all of the domestic redistributive institutions that bear upon Australia's export capacity and standard of living.

Due to the collapse of international mineral prices the Woodward approach was bound to come under pressure for its economic implications, although Mr Holding's announcement on the forthcoming national application of Woodward increased that source of pressure immediately.  This in turn contributed to the breakdown of bipartisanship.

RELIGIOUS PRINCIPLES

Equally important for the politics of land rights in 1984 were the essentially religious principles implicit in the Woodward approach.  The principles of inalienability of land and the observance of the sacredness of some land departed from the Australian tradition in the sense that they recalled pre-capitalist limits to the penetration of the market, in this case the land market.  Inalienability prohibited the market valuation of property, denying the possibility that such property might be defined as an asset.  This in turn precluded the conversion of such an asset to wealth, or indeed the investment of wealth through the acquisition of new assets.  Some standard functions of the ownership of land -- that it produce a return, that it represent wealth measurable in money terms -- disappear with inalienability.  Whoever possesses inalienable land possesses a potential for production circumscribed by an inability to raise loans on mortgage security.  On the other hand, the inalienable landowner possesses surface, space and the spiritual constructs that relate to them.

In this sense, the principle that sacred sites should be protected is simply a more precise restatement of the implications contained in the notion of inalienable land.  Yet sacred site protection is politically more volatile because it dives head first into themes that recall some of Australia's most divisive and long-lived debates over the separation or otherwise of church and state.  An apprehension that Aboriginals might somehow be granted divine title to land (divine in the sense that Aboriginal land be removed from the market or from common use for all time), and that the state has lent its authority to ancient conceptions of divinity through allowing the sacredness of sites to over-ride market determined property relations or principles of common use has contributed to the pressure on Woodward.  In some respects, National Trust or National Parks legislation removes land from the market in the same way, and imposes similarly alien values over the concerns of property holders.  But these latter market interventions preserve Crown ownership and consequent public use.  In contrast, Aboriginal land ownership precludes public access, asserts Aboriginal control and blesses with state authority religious definitions of what land is for.

CHALLENGES FROM THE STATES

What happened in the first six months of 1984 was the first testing of two positions to which Holding's five principles reduce:  that Australia can afford the long-run risks in granting land rights that are tied financially to the mining industry;  and that non-Aboriginal Australia can accommodate spiritual conceptions of land ownership.  Not surprisingly, the challenge to the first position has been made in Western Australia, the State most heavily dependent for its economic future on mining.  The greatest challenge to the second position has come about in Victoria, whose high concentration of rural population makes cultural clashes with Aborigines almost inevitable.  In both cases, spiritual and economic objections are involved.

The politics of Aboriginal land rights became increasingly volatile during 1984.  In part the tension came about as both state and federal governments foreshadowed their intentions with sympathetic draft legislation, position papers and public statements designed first of all to accommodate the aspirations of Aborigines and their representatives.  In Victoria, for instance, a draft State land claims bill allowed the possibility that all Crown land in the state could be subject to claim.  As the rural population digested the implications of this possibility, a soldier settlement farm faced compulsory acquisition for use as .an Aboriginal museum.  Mr Holding was at this time suggesting that state legislation, if delayed or not effective, might soon be over-ridden by stronger federal laws.  It may well be that the state and federal initiatives of late 1983 and early 1984 were never designed to actually become law, but rather to provide initial frameworks for debate, as sympathetic to the Woodward approach as possible, from which governments would later retreat.  But the effect of these tactics was to sow the ground for fear as rural communities began to wonder whether their own property might, if things continued, be at risk.  A powerful, negative reaction to the ALP land rights approach began to develop in Victoria from the local government level, and it contained a sharp measure of intolerance of both sacred site and general land claims.  This contributed to delays to the introduction of land claims legislation in Victoria.

At roughly the same time that problems in Victoria developed, in Western Australia the land rights controversy took an unexpected twist.  The Burke government had won power on a platform that included the granting of land rights and moved quickly to establish an inquiry as to how to go about providing them.  But this time the mining industry took its case directly to the W.A. public, advertising the "Equal Rights" slogan.  Opinion shifted so quickly that the Burke Government, fearing that the land rights issue might affect its chances of re-election, soon found itself opposing the Holding position on uniform national land rights.  The turnabout in W.A. matched a change in South Australia, whose Upper House amended the Maralinga Land Rights Bill so as to depart from the high mark "Pitjantjatjara model" of effective Aboriginal control over mining and exploration.  Queensland, meanwhile continued to go its own way, preferring a concept of trust control over Aboriginal reserves, and refusing to contemplate the granting of inalienable title.  For its part the Northern Territory government sniffed the wind until mid-1984, when it came out opposed to the 1976 Act on the ground that it had resulted in a ten year mineral exploration freeze.  Once this step was made, the Territory government moved quickly from the economic to the spiritual, and began to uproot signs warning of fines to be imposed on those trespassing on Aboriginal sacred sites.

The Federal Government was at last forced to confront the reality of the States' disenchantment with the Woodward approach in September.  Strangely, the trigger was the release of the long-awaited Seaman Report on land rights in Western Australia.  The report amounted to the strongest statement written in recent times favouring the extension of the Woodward approach, and in particular it bluntly reaffirmed the principle that Aboriginals should control mining activity on their land.  Equally bluntly, Premier Burke in Western Australia released the report with a statement contradicting Seaman's view on Aboriginal control.  This in turn forced the hand of the Federal Government -- for to have continued as before would have left Burke and Holding in open confrontation with Burke's views clearly in line with public opinion.  At this time discussions were held between miners, pastoralists and the Prime Minister, Mr Hawke.  After some weeks of confusion in Canberra, it emerged that Holding would no longer be able to sustain his argument for the extension of the Woodward principles throughout Australia.  By October, Hawke indicated that the Burke approach, which affirmed Crown control over mineral activities on Aboriginal land before Aboriginal control, would prevail.  The Woodward approach, in effect, had been taken to a further stage in the Seaman Report, and in the cold light of political and economic reality it did not stand up.

In Western Australia, South Australia, Victoria, Tasmania, Queensland and the Northern Territory the political swell that began with Woodward seemed either absorbed or neutralised by varieties of local countervailing forces.  Much of the energy in Canberra was directed towards Heritage legislation, which the government successfully introduced.  But its weaknesses very quickly became apparent.  The first three applications for ministerial intervention under the Interim Heritage Act were refused -- one, the Harding River Dam case was in the event 75 per cent built, while the other two, North Stradbroke Island and the Daintree road, were mainly the concern of conservationist more than Aboriginal interests.  It was predicted at the time that the Interim Heritage Act became law that it could easily serve as a means to stop developments, rather than to protect sacred sites, and the nature of the first three applications confirmed that these fears were well-founded.  In any case the Heritage legislation was designed to be replaced by a more general code of national land rights legislation.  Since it is now likely that the States will have the primary say on these broader questions, the future of national Heritage legislation is at present unclear.

Does this mean that land rights, as conceived by Woodward and re-affirmed for national application by Holding ten years later, amount to a massive misdirection of bureaucratic and political energy?  If the current gulf between the critics and the advocates of national uniform land rights legislation continues to widen at the rate that it widened in 1984, one might conclude that the flaws in the approach are overwhelming.  Nevertheless, the way in which the Woodward approach has been handled by governments might have been as important in fuelling controversy as the approach itself.  In Victoria the State Government was almost unbelievably ignorant of the implications of its initial bill.  One suspects that the W.A. Government had not thought hard about the role of mining in the state economy before it committed itself to land rights in its party platform.  In Canberra, the view that the mining industry could easily absorb the added costs of land rights was based on ignorance of the returns to mining investments.

More importantly, few governments thought hard about what the Woodward approach might mean for the electorate.  Nearly all governments which have taken on the approach have been unwilling to state precisely their views of what the legislation might bring.  How much land would be involved?  Could Aboriginal stewardship of public land be reconciled with any forms of public access?  What do the facts of prior occupation of Australia really mean?  To what degree does acknowledgement of prior occupation somehow cast shadows over the legitimacy of subsequent settlement?  Because none of these questions have been seriously addressed, doubts have spread and rumours have been believed, providing the fuel for the reaction to the land rights cause.  At the root of the reaction has been pervasive insecurity at the prospect of national uniform legislation.