3 Land TenureFreeholdLeaseholdMining leasesNative TitleAll land was initially owned by the Crown. Minerals are owned by the Crown
4 A distinctive feature of our history was that the dispossession of the native peoples was achieved without treaties between the government and the Aborigines. The absence of treaties was used to explain why Aborigines were denied the land rights accorded by law to native peoples in the US, Canada, and New Zealand.There have been three major judicial milestones in rectifying this injustice.The first was the 1992 Mabo decision, where the High Court declared that Australian common law recognises a form of native title to land. Native title exists where the indigenous people have maintained their connection to the land and title has not been extinguished by legislation or government action.The second milestone was the enactment of the 1993 Native Title Act. The Act complemented the Mabo decision by attempting to make the concept of native title workable. It set up a claims process for native title rights, and regulated future government acts affecting native title land.The third crucial event was the High Court's recent decision in The Wik Peoples v Queensland. The court held, by majority, that the grant by Queensland Government of pastoral leases did not extinguish native title
5 Other more symbolic milestones include Yirkala Bark Petition1963: The Bark Petition The Yolngu people of north-east Arnhem Land in the Northern Territory, faced with their traditional lands being taken over by a huge bauxite mine, presented a petition to the Australian Parliament, in the form of a bark painting, calling for recognition of their land rights
7 It was to take another 9 years before justice was served 1966: Wave Hill Walk-Off Led by the Gurindji people, 200 Aboriginal cattle workers and their families walked-off Wave Hill Station striking for better( equal ) pay and better conditions.The nine-year strike developed into a successful claim for return of traditional Gurindji landsToday Wave Hill is regarded by many as the beginning of the modern Aboriginal land rights movement.It was to take another 9 years before justice was served
8 THE 1967 REFERENDUMincludeAborigines in the censusAllowing Federal Government to have powers to legislate about Aboriginal welfareThe referendum was not about receiving the vote
9 Test Cases; Using the courts The Gove Land Rights Case.1972 The Yirrkala people had challenged the right of the Northern Territory government to allow Nabalco to mine bauxite on traditional Yirrkala land which contained sacred sites. Justice Blackburn claimed that although he recognized their traditional system of law, that this had been replaced by British Law in Terra Nullius was alive and well!
10 1972: Aboriginal Tent Embassy Aboriginal people set up a "tent embassy" outside the then Parliament House in Canberra calling for national land rights and an end to discriminationPrime Minister McMahon, announced that “ land rights would threaten the tenure of every Australian.” Comment??????The Embassy symbolized that blacks had been pushed far enough, in education, in health, in police victimization. The tent symbolized Aboriginal people’s sense of being foreigners in their own land. For six months it stood as an important symbol of growing Aboriginal political identity.
11 In 1972 the Whitlam government was elected In 1972 the Whitlam government was elected. Spending on Aboriginal programs was greatly increased and Aboriginal and legal services were funded the National Aboriginal Consultative committee was set up to represent Aboriginals and recruitment was sought from within their groupIn 1972 the government introduced the policy of Self Determination, which recognized the rights of Aboriginals to live traditional lifestylesThe Whitlam government appointed Justice Woodward to head the Royal Commission into land rights
12 “We will legislate to give Aboriginal Land Rights-because all of us are diminished while the Aborigines are denied their rightful place in this nation.”At right1975: Gurindji Hand Back Prime Minister Gough Whitlam hands over title to traditional Gurindji lands
13 Woodward Royal Commission 1973-74 The commissions brief was limited to an inquiry into land rights in federal territories only, because of concerns over creating conflict with states rights.Its report recommended;That two land councils be established and funded to provide legal support for land claimsThat crown land should be open to land right claimsThat Aboriginals should be recognised as owners of their reservesThat miners should pay royalties to Aboriginal people for minerals extracted from their landThat Aboriginals had the right to deal directly with mining companies in any discussions
14 IMPACTThe Whitlam Government introduced legislation based substantially on Woodward’s recommendations. The Bill was before parliament when the Government was dismissed in the Constitutional crisis of November 1975Despite election promises from the Liberal-Country Party that the Bill would be passed without amendment, Malcolm Fraser buckled to pressure from mining and pastoral industry. A new bill was drafted with many important provisions absent.
15 Piecemeal State Legislation In 1976 the Fraser government passed the Aboriginal Land Rights Act under which they were allowed to claim Crown Land that was not being used by other peopleAn Aboriginal Lands council was set up to control this landIn 1985 Aboriginal people were given ownership of Ayers rock now known by its traditional name of UluruOther state governments passed acts giving limited recognition to traditional owners
16 Rights and PrioritiesIn 1978, the Queensland premier Joh Bjelke Peterson, placed Aboriginal reserves at Arakun and Mornington Islands under the control of the Minister for Local Government. His intention was to prevent land rights claims which would threaten commercial and mining interests.In 1980 Amex asked for rights to search for oil in Noonkanbah in Western Australia. The government ignored the rights of the traditional owners and their concerns about sacred sites. The Western Australian government brought in police so that protesters would not prevent Amex’s work“The white miner’s interests are short term but his mines are eternal.”Galarrwuy Yunupingu
18 Author of Why Werent we told "...we were having lunch one day in Reynold's office when Koiki was just speaking about his land back on Mer, or Murray Island. Henry and I realized that in his mind he thought he owned that land, so we sort of glanced at each other, and then had the difficult responsibility of telling him that he didn't own that land, and that it was Crown land. Koiki was surprised, shocked and even...he said and I remember him saying 'No way, it's not theirs, it's ours'..." —Professor Noel Loos, James Cook UniversityHenry Reynolds-Author of Why Werent we told
19 The claim by the people of Mer was that they owned the island because their families had lived their for time immemorial.After losing in the Supreme Court on a technical decision concerning Mabo’s adoption , they appealed to the High Court of Australia
20 Hearings before Justice Moynihan of the Supreme Court of Queensland, Mer, 1989
21 The appeal was heard in the High Court of Canberra as it involved interpretation of the Constitution.
22 A HIGH COURT JUDGMENT CAN PROMPT PARLIAMENT TO MAKE LAWS Having considered a case brought by members of the Meriam people, Eddie Mabo, James Rice and David Passi, on 3 June 1992 six justices of the High Court of Australia declared that the Meriam people were the owners of the Murray Islands in the Torres Strait. In doing so, the judges recognised that Aboriginal and Torres Strait Islander people had legal rights to the land prior to the arrival of Europeans, and those rights (native title) could continue to the present provided that the people had maintained their connection to the land, and that title had not been extinguished.The implications of the Mabo decision caused disparate and emotive reactions throughout the Australian community. The Prime Minister, Paul Keating, declared that his government would make Mabo an historic turning point: ‘the basis of a new relationship between indigenous and non-Aboriginal Australians’. Aboriginal groups hoped for protection for native title, and compensation for its loss. Mining and pastoral interests sought reassurance that their titles and leases would not be threatened. All saw the need for Commonwealth legislation to remove uncertainties arising from Mabo.
25 HIGH COURT OF AUSTRALIA The judges in the case declared that: ... the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.It was the first time that the High Court had considered the position of Indigenous people in Australian property law and their judgment was not restricted to the Murray Islands. Justice Brennan said:... there may be other areas of Australia where an Aboriginal people, maintaining their identity and their customs, are entitled to enjoy their native title.Justice Brennan
26 1993 Native Title Act. The Mabo case led to the This Act accepted the notion of native title, however it did not clarify native title on land that the government had leased to farmers and pastoralists
27 Native Title is defined as a form of guarantee of rights and interests in land and water, rivers lakes and oceansNative title is only available to indigenous people where they are able to prove a continuous link with the land and have ceremonies and customs associated with the land
28 The Redfern Speech 1992“It begins, I think, with the act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the disasters. The alcohol. We committed the murders. We took the children from their mothers. We practiced discrimination and exclusion.It was our ignorance and our prejudice. And our failure to imagine these things being done to us. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask - how would I feel if this were done to me?As a consequence, we failed to see that what we were doing degraded all of us.”
29 From Mabo to WikThe first case to come before the High court under the new Native Title Act was brought by the Wik people of north Queensland. They claimed Native Title rights to land that was under pastoral lease.In December 1996 the High court ruled that a pastoral lease did not by necessity extinguish native title.Pastoral and mining groups put pressure on the government to extinguish native title.Howard drafted a 10 point plan, considered to be a compromise and later legislated under the Wik BillThe passing of the Wik Bill, July 1998 After 106 hours of debate, the Wik Bill was passed by the Senate by 35 to 33 on the morning of 9 July, Prime Minister John Howard said that this was a ‘wonderful outcome for all Australians’
30 HOWARD'S TEN-POINT PLAN – a compromise??? 1. Validation of all uncertain leases granted by Government's between the passage of the Native Title Act and the Wik case.2. Confirmation of extinguishment of native title on title such as freehold, residential and commercial. Pastoralists would have more limited exclusive possession of agricultural leasehold land.3. Aborigines would lose the right to negotiate over third-party acquisition of land in towns and cities and would be unable to impede the provision of municipal services.4. As provided by the Wik decision, pastoral rights would prevail over native title rights. Farmers would be allowed to pursue activities that constitute primary production, including farm stay tourism.5. Once Aborigines have passed a registration test they would be able to have access to a pastoral lease prior to the determination of their native title claim, if they can prove a current physical connection.6. Drastic reduction of Aboriginal right to negotiate about mining activities.7. Aborigines would have no right to negotiate over compulsory acquisition by the Government of vacant Crown land in towns and cities. Outside urban areas, there would be a higher registration test before a right to negotiate a native title claim would be granted.8. The Government's power over water management would be put beyond doubt.9. An overhaul of the native title claims process and the inclusion of a sunset clause.10. The establishment of a framework to allow voluntary but binding agreements between Aborigines and other parties.
32 Australia faces UN race inquiry over Wik laws Sydney Morning HeraldAustralia faces UN race inquiry over Wik lawsAugust 18th, 1999By LAUREN MARTINAustralia's race record could come before the United Nations General Assembly by the end of the year, after a Geneva committee yesterday rejected the Government's defense of its Wik native title laws.The UN Committee for the Elimination of Racial Discrimination (CERD) vowed to continue its "early warning" watch on Australia's treatment of indigenous peoples, despite the Government's testimony that the Wik laws were not discriminatory.The Wik changes "risked creating an acute impairment" of indigenous land rights, the committee said.After Australia was made the first Western nation to be called before the committee to explain its race policies - joining nations such as Algeria, Bosnia, Burundi, Russia, Rwanda and Yugoslavia - the Government said it was not getting an adequate hearing
33 “Australia faces UN race inquiry over Wik laws” Sydney Morning Herald“Australia faces UN race inquiry over Wik laws”