Geography at the Millenium
Speech by Dr Bill Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner to the Institute of Australian Geographers, 28 September 1999
I would like to begin by acknowledging the Eora people, the traditional owners, custodians and kinsfolk of the land where this conference is being held.
At a recent meeting of the Australian Human Rights and Equal Opportunity Commission, the Commissioners' declared that the rights of Indigenous people raised the most significant human rights issues in this country at this time. At a meeting in Canberra two weeks ago, the country's Indigenous leaders stated that a substantial number of issues must be the subject of negotiation between Aboriginal people and the Commonwealth Government before reconciliation could become a reality. These issues comprised a statement of Indigenous rights. Any nation which is to enter the new millennium with maturity and dignity must allow for the exercise and enjoyment of human rights by all of its citizens and clearly, this means that Australia must pay special attention to the rights of Aborigines and Torres Strait Islanders.
Geography and Geographers, with their very special perspective on the world, can contribute in the human rights arena and I will say something about this today.
I want to focus this address on one specific Indigenous right, and this is Native Title. In the time-honoured tradition of geography I will use this as a case study from which we can make at least some generalisations. I believe that at this time, Indigenous rights and Native Title provide an area where geographers can make an important contribution at different levels and in ways which may advance the discipline and provide benefits to Indigenous people on the ground. I also believe that the growing dialogue between geographers and anthropologists about Indigenous issues is of great significance, and I will begin by referring to the work of a specific anthropologists, work which I hold in the highest regard.
Some years ago when I was on the Australian Heritage Commission we asked this anthropologist, Dr Deborah Bird Rose to write an essay on Aboriginal Australian's concepts of landscape, and wilderness, two subjects which of course are still dear to the hearts of many geographers. The resulting essay, 'Nourishing Terrains', is, I believe one of the finest pieces of writing to ever deal with these issues and it should be on the reading lists of all students of geography, anthropology, ecology, environmental studies and even English literature in this country.
In the cases of wilderness, Rose points out that this is a concept which has been imported into Australia, mostly from Europe and especially North America where, by and large it refers to areas which are remote from humans. She quotes David Brower, first executive director of the Sierra Club and founder of Friends of the Earth, who jokingly says that wilderness is a place 'where the hand of man has not yet set foot.' But, as Rose points out:
A definition of wilderness which excludes the active presence of humanity may suit contemporary people's longing for places of peace, natural beauty, and spiritual presence, uncontaminated by their own culture. But definitions, which claim that these landscapes are 'natural' miss the whole point of the nourishing Australian Terrains. Here on this continent, there is no place where the feet of Aboriginal humanity have not preceded those of the settler. Nor is there any place where the country was not fashioned and kept productive by Aboriginal people's management practices. There is no place without a history; there is no place that has not been imaginatively grasped through song, dance and design, no place where traditional owners cannot see the imprint of sacred creation (p18).
In other words, in Australia there is NO wilderness.
I was expanding on this theme of 'no wilderness in Australia' to a colleague of mine once. He was also leading light in the Wilderness Society. He became very angry with me. While eventually conceding, or at least saying that he could see the point I was making, he nevertheless declared, in a very cross manner: 'but the average person in the street doesn't see it like that.' And he was right. The average person does not see it like that and I suspect that most geographers don't see it like that. But we must remember that the average person in the street, and again I suspect most geographers, did not see Terra Nullius for what it was until the High Court's Mabo judgement only seven years ago.
Terra Nullius is the legal equivalent of seeing wilderness where in fact there is a society; seeing atomism where in fact there is a collectivism; seeing no law where, in fact, law has governed men and women for thousand and thousands of years. The ideological basis of terra nullius was uncovered in the Mabo decision.
The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposed of the municipal law that territory (though inhabited) could be treated as a 'desert uninhabited' country. The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory (and not merely the personal law of the colonists). Colonies of this kind were called 'settled colonies'. Exhypothesi, the indigenous inhabitants of a settled colony had no recognised sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organisation. P36 Mabo.
The High Court in Mabo also uncovered the discriminatory practices which were veiled by the legal fiction of terra nullius.
It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty's indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands. Yet the supposedly barbarian nature of indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land, as Lord Sumner speaking for the Privy Council said In re Southern Rhodesia
The estimation of rights of aboriginal tribes is inherently difficult. Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideals of civilised society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. P39
The recognition of native title by the High Court in 1992 was a recognition that law did govern Aboriginal society when sovereignty was acquired by the British in 1788 and that Indigenous law was a subtle and elaborate system which provided a reasonably stable order of society.
With the overturning of terra nullius the requirement that Indigenous laws be 'reconciled with the institutions or the legal ideas of civilised society' was also abandoned. In deciding whether to recognise Indigenous law it was no longer necessary to find that the Indigenous relationship to land bore a resemblance to those already known to the common law. In fact to do so was discriminatory.
The theory that the indigenous inhabitants of a 'settled' colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principal to be made in the present case. This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher 'in the scale of social organisation' than Australian Aborigines whose claims were 'utterly disregarded' by existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not. P40
The course which the court chose to take in Mabo is well known and represented a major advance in the struggle for recognition by Indigenous Australians. Native title, whilst recognised by the common law, has its origins in and is given its content by the traditional laws acknowledged by and traditional customs observed by the indigenous inhabitants of a territory.
Native title has brought an end to terra nullius, and with this a kind of peace. But it has also signalled a new battle. The struggle now is not so much against the non-recognition of Indigenous culture but rather a struggle over the meaning and value that non-Indigenous law should give it. It is my role, as Social Justice Commissioner, to ensure that the principles of equality guide the outcome of this struggle. So long as the common law continues to recognise that traditions and customs of Indigenous people and give them a meaningful place within Australian society tody native title exists as a declaration of justice. Where however, the common law applies tests and rules which reduce native title to a right that cannot be enforced then Indigenous culture will again have no place within Australian society.
A disturbing trend in some of the recent Court decisions is the characterisation of native title as a bundle of rights rather than a title to land. Under the 'bundle of rights' approach, native title rights are no more than the activities which evidence an observance of traditional customs and laws. If the present claimants hunt and fish on the land as their predecessors once did, then the native title right will be interpreted as a right to hunt and fish on the land. If the claimants enter the land to visit a burial site or maintain traditional sites of significance then the native title right will be a right to come onto the land for such purposes. This approach to native title is a very limited one. Native title is no more than the remnants of a society which is no more.
An alternative approach to native title is to see the present day activities of hunting and fishing, maintaining significant sites etc, as evidence of a broader concept of Aboriginal rights; one which acknowledges the system of law and culture arising from the significant connection of an Indigenous society with land but which also acknowledges that this law and culture is dynamic and capable of evolution in a contemporary world. The distinction between these two characterisations of native title is an important theme in the Canadian cases and is emerging as equally significant in the Australian common law.
It is important that the full spectrum of rights are available to Indigenous people within Australia. To diminish our rights to a set of activities rather than a complex and interwoven relationship with the land is to give native title little value or meaning within the non-Indigenous law.
There is another forum where this struggle for meaning and value of native title is taking place. Twelve months after the Mabo decision was handed down the Native Title Act was passed. While the Act left the recognition of native title to the common law it clearly delineated those situations in which native title could be extinguished. In relation to past acts of extinguishment of native title (before 1994) the Act validated those grants which would have been invalid because of the failure to recognise the existence of native title. The basis for the invalidity was that, after 1975 with the passing of the Racial Discrimination Act native title, like any other title, could not be appropriated unless certain procedures were followed, such as notification, compensation, appeal etc. The Mabo decision meant that many appropriations by the Crown had occurred since 1975 without bestowing procedural rights on native title holders. In relation to future acts by the Crown, native title was to be treated the same as ordinary (freehold) title. In addition native title holder and claimants had a right to negotiate in relation to mining activity and certain compulsory acquisitions.
In its overall effect it was felt that the Native Title Act was generally beneficial to Indigenous people. The same cannot be said of the amened Native Title Act. The CERD Committee recognised this in its recent decision which examined the amendments to the Native Title Act in relation to Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination, to which Australia is a signatory.
While the original Native Title Act recognises and seeks to protect indigenous title, provisions that extinguish or impair the exercise of indigenous title rights and interests pervade the amended Act. While the original 1993 Native Title Act was delicately balanced between the rights of indigenous and non-indigenous title holders, the amended Act appears to create legal certainty for governments and third parties at the expense of indigenous title.
Clearly it is the Committee's view that the gains made in the original Act have been lost as a result of the recent amendments to the NTA. The validation of otherwise invalid non-Indigenous interests granted between 1994 and 1996, the extinguishment of native title with respect to classes and schedules of non-Indigenous interests, the upgrade of pastoral leases without negotiation in respect of conflicting native title interests, as well as the winding back of the right to negotiate in respect of mining and certain compulsory acquisitions mark a trail of dispossession through the amendments.
The exact impact of the amendments on Indigenous people is still taking shape in every state in Australia. As a result of the amendments, in order to follow native title legislation one must venture into a myriad of state legislation to determine what particular regime applies to any identified parcel of land in respect of a specified act, decision, grant or enactment. In Queensland alone there is likely to be 53 separate regimes which apply depending on the contingencies of the situation. Each state has devised or is considering devising separate regimes in respect of validation, confirmation, the right to negotiate, compulsory acquisition and dispute resolution. Within the right to negotiate regime there is the possibility that separate processes apply in respect of exploration, tin and alluvial gold mining, opal and gem mining, mining and compulsory acquisitions on pastoral leasehold land, within towns or cities, or on reserves. Terra nullius has been replaced by a plethora of State and Commonwealth legislation which gives native titleholders different rights and native title different meanings.
One of my aims as Social Justice Commissioner is to ensure that the human rights of Indigenous people are brought to the forefront in the development of the many native title regimes being devised presently at the state level. One way of doing this is to ensure that the standards in the NTA which establish the limit of the State's capacity to legislate in respect of native title, incorporate the principles of equality and non-discrimination. Unfortunately the Act fails to set standards according to these principles. States are left to redraw the legal and political boundaries around native title with the result that less land and fewer rights are available to native title holders. Within the native title estate native title rights are determined by reference to the boundary fences of a pastoral lease, the edges of reserve land, the limits of towns or cities, and the border of a state or territory.
The issue of Nature Title will certainly flow into the next century. And many of those aspects which I've been talking about are, I should think, the sorts of things that geographers dream of: land use patterns, land use conflicts, land management practices, boundaries and edges, limits and borders, change over time and increasingly international pressures on internal activities. Combining these, or approaching these, with our great traditions of mapping and fieldwork would provide legitimate activities for many, many geographers for many years to come.
But I suggest that in this native title area, as in the whole human rights arena, some other dimensions should be added by geographers and by the geographical profession.
But I suggest we go beyond these subject matter areas into adopting a perspective which can guide our approach to our subject and be intellectually and morally fulfilling at the same time. If we adopt a social justice or human rights perspective, or we place our geographical research in a human rights framework we will be guided by a line of inquiry that asks: who gains and who loses as the result of particular activities and practices. Clearly, where non-Indigenous interests are preferred over Indigenous interests, the legislation, the activities, the practices are discriminatory. When new legislation is introduced which allows certain practices, we need to ask if the legislation taken as a whole discriminates against Indigenous interests or if there is a balance between the gains and losses of the legislation and the activities which it authorises. Answers to these questions may also be illuminated by the insights gained from seeing the world from an Indigenous point of view. This is where the dialogue with anthropologists such as Deborah Bird Rose can be so useful.
Identification of subject matter and adopting a human rights framework can be further supplemented by practical action. The institute of Australian geographers is, of course, comprised of a diverse membership but my memory of it is as a membership of good will when the issues concerning the needy and vulnerable in our society are concerned. A group of the country's leading intellectuals can form an important group to lobby for change. One of the things which I learned from working in Canberra is that among some politicians and legislators, a lobby group of academics is regarded as quite a powerful force. There are, of course, those academics and others of particular leanings who argue that advocacy and scholarship should not mix, lest the latter lose it objectivity. Reason does not appear to influence this lot, who also have failed to notice that the myth of scientific objectivity was exploded years ago. They can be difficult to ignore but for the most part is possible to do so.
And finally, subjects, frameworks, perspectives, insights and advocacy can all be enhanced when there are more Indigenous people practising the profession. I am delighted, warmed and heartened by the knowledge that the Institute is taking positive steps to recruit and train Indigenous geographers and I commend this trend and hope that it continues.
Last updated 1 December 2001
