By Andrew Honey
This year, designated Indigenous People's Year by the UN, is the 205th anniversary of the resistance to the invasion of Australia. Just what is Australia's record on indigenous rights 25 years after the 1967 referendum to grant federal power in Aboriginal and Torres Strait Islander affairs and 10 years after the election of the Hawke Labor government pledged to introduce uniform national land rights?
Comments by Kevin Cook, then chairperson of the NSW Aboriginal Land Council, 10 years ago put the question into context and reflect a sentiment that is still widespread among indigenous people in Australia today, who have never passively accepted the invasion and its consequences:
"Today our resistance takes the form of demands for recognition of our traditional rights to land. These have never been ceded by treaty or overturned by conquest or law. We maintain they still exist, but white law continues to ignore them."
Cook's remarks are a clear indication that Kooris and Murris are not simply saying that the lands granted in NSW are inadequate, although that is the case. They are making the point that land rights encompass more than freehold title to parcels of land — and that is why land rights are at the centre of the indigenous struggle.
There is, first, the claim to the traditional exercise of Aboriginal self- determination or sovereignty. The High Court, even after Mabo, regards the "acquisition" of sovereignty by the invaders in 1788 as absolute and final.
The court, subordinate to that sovereignty, is locked into treating it as axiomatic. It thus upholds this aspect of the doctrine of terra nullius, even though self-determination for indigenous people, at least on paper, is a recognised international norm.
Even within the framework of Australia's federal and state laws, the High Court's rejection of terra nullius as applied to land ownership and the crown's automatic ownership of all land holdings, mean that claims to traditional title, which fall outside the land rights acts, remain alive.
So also do other traditional rights such as hunting, gathering, marine harvesting and fishing, notwithstanding state laws telling
NSW South Coast Aborigines they cannot harvest abalone or telling Bass Strait islands Aborigines they cannot go muttonbirding.
The partial striking down of terra nullius shows up the restrictivenesss of even the more progressive land rights legislation in Australia.
An example — from NSW, although it has national implications in the wake of Mabo — is the fact that even with the former reserves reduced to a rump, only a part of the unalienated crown land in NSW is "claimable".
This is because unalienated land leased from the crown can be claimed only when the lease expires. In the far west of NSW, this land can be granted only as leasehold anyway.
These sorts of provisions will not hold up after Mabo, both because they are politically unsustainable and because indigenous people cannot afford to acquiesce in having their rights denied.
It is clear that all unalienated crown land is potentially claimable and that indigenous people are not simply another group of potential leaseholders; they are traditional owners entitled to assert traditional rights even while leases remain in force.
All current land rights legislation fails in this area because it maintains the status quo, not only in the access to national parks and fisheries, but in the claimability of pastoral leases and stock routes, without properly acknowledging the nature and extent of traditional rights.
For all other indigenous people — those who have lived as fringe-dwellers, in country towns, on farms, who have been removed from one reserve to another, or from their people altogether, or who are urbanised in the capital cities — current land rights legislation offers very little.
Claims to land on the grounds of long association or economic association (in addition to traditional and religious affiliation) have not been recognised outside the Northern Territory, and even there the Woodward commission's original recommendations were watered down beyond recognition.
Cohesive national land rights — off the agenda since Bob Hawke caught fright from the opinion polls in 1985 and the Burke ALP government in WA defended "states' rights" with the assistance of an openly racist mining lobby in the same year — remain a key aspect to meeting demands of this kind.
Land rights are still on the political agenda, even though the bipartisan "reconciliation" process doesn't even mention
them, because the compromises wrung out of state and federal governments by the indigenous political struggle over the last 30 years do not recognise a broader conception of traditional rights or the right to economic and political self-determination.
Yet it is clear that traditional rights to land require political and economic power. So, for example, while the resources local councils control or have access to might seem modest, they are essential to landholders, so that to enjoy equal facilities and access, indigenous communities need to have all the powers of local governments.
Australia has a poor record of endorsing international human and civil rights conventions in part because they require the ratification of the states to become binding — an indication that the states as presently constituted and the ideology of "states' rights" are an obstacle to full land rights.
In Australia 800,000 hectares of reserves were confiscated in the four years after the rather modest 1957 ILO Convention on the protection of indigenous populations was adopted.
In addition, Australia's policies on labour, education and health and the treatment of indigenous children constituted international human rights abuses.
The struggle for decolonisation that swept through Asia in the 1950s and Africa in the 1960s was an inspiration to many indigenous people in the colonial settler states.
In the 1960s in Australia there were protests in support of the US civil rights movement and in support of the freedom struggle in South Africa, out of which emerged the NSW freedom rides and a strand of the indigenous political struggle.
At the same time there was a struggle within Australia against the assimilation policy and the forcible closure of reserves, such as the successful struggles in 1963 to keep open Lake Tyers in Gippsland, and Cummeroogunga on the Murray River, NSW.
There was also a renewed break-out — prefigured by the Cummeroogunga walk-off in 1939, the Pilbara strike of 1946 and the Torres Strait strike of 1948 — against dispossession and super-exploitation, such as the Gurindji struggle that began in 1963.
All those elements fused to produce a complex political movement that has wrung concessions from a colonialist Australia tied to a web of both forcible assimilation and forcible segregation. Governments have attempted to coopt this indigenous struggle by fostering purely cultural indigenous identities within the
framework of national consensus building.
At best, land rights are conceded in only the narrowest and least viable sense. Some state governments, such as the Liberals in Victoria and Labor in Western Australia, are reintroducing assimilationist practices and denigrating the indigenous ensemble of land, language and kin. This is why the political struggle for full land rights and resistance to the invasion of January 26, 1788, will continue.