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Period: Towards the New Millennium »
Commentary on: The Landmark Mabo Decision »
Prof Andrew Jakubowicz.
Text Commentary
Recognising Indigenous rights
1992 - A major court decision recognises Aboriginal land rights and boosts reconciliation efforts
As this 1988 painting by Adelaide artist Andrew Hill shows, the 200th anniversary of the arrival of Europeans in Australia was not a joyous occasion for Aborigines, for whom it marked the invasion of their lands. The 1990s have seen some major decisions in areas affecting Aborigines, but much uncertainty remains. As Hill comments on his painting, many migrants feel empathy towards the situation of Aborigines and share concerns over issues that affect both groups, but the links between them in addressing these issues remain tenuous.
The FitzGerald inquiry into immigration had noted that Aboriginal Australia did not see itself as having an interest in multiculturalism. The National Agenda for a Multicultural Australia specifically wrote Aboriginal Australia into the story, arguing that it was as important for Indigenous people as for the other two groups identified as “Anglo-Celtic” and “non-English speaking background”. Aboriginal leaders had distrusted the multicultural project in part because it provided a potential rationale for the continuing inflow of non-Aborigines, thus further threatening their survival, but mainly because it suggested that Aborigines were just another cultural group, rather than the first owners of the land and undefeated, invaded peoples.
However in the context of the debates about multiculturalism, a major event took place which completely changed the position of the Indigenous people in the political, legal and cultural landscape. In 1992 after years pursuing his case through various state and federal courts, Eddie Mabo from the Torres Strait, with other Murray Islanders, gained recognition from the High Court of their continuing rights to the land which had not been “alienated” by the Crown - the so-called pre-existing native title. The Mabo decision, as it came to be called, provided Indigenous Australians with the possibility of claiming lands where native title had not been extinguished by an inconsistent act of the Crown, such as the grant of freehold title. It overturned the concept of "terra nullius", that Australia was an uninhabited and unoccupied land, and thereby laid open the very heart of the foundation myth upon which the settlement of Australia after 1788 was based.
The barriers between Indigenous and immigrant communities had been a major concern for proponents of multiculturalism. From the mid 1980s the Government had tried to open up communication, for instance through the appointment of Indigenous representatives to the Board of the Special Broadcasting Service. Yet the Office of Multicultural Affairs had great difficulty in developing those links itself. Part of the problem lay in the fact that the multicultural agenda did not actually address racism as an issue, preferring to concentrate on cultural and economic issues. Thus the potential bridge - Indigenous and immigrant communities experience racism, albeit in different intensities, and can therefore work together to confront it - was never built. Even when Shergold left OMA to work with the Aboriginal and Torres Strait Islander Commission (ATSIC), he expressed frustration at the lack of interest from OMA in possible collaboration.
The recognition of Indigenous rights in land has had a tumultuous sequel. Prime Minister Paul Keating launched a Program of Reconciliation (and a National Council for Aboriginal Reconciliation) in 1991, linked to national Native Title legislation which aimed to clarify the rights of Indigenous people and others (particularly pastoralists and miners who had leasehold only over land on which native title might still exist).
Critics of the High Court ruling and the subsequent Mabo/Native Title legislation, claimed that there were five elements that had not been taken into proper account:
- the threat to existing land ownership of non-Aborigines;
- the past is gone, the present is different;
- Aborigines are already overly privileged compared with other Australians;
- the High Court was wrong in Law, and had made itself into an unelected Parliament;
- Aboriginal people are backward and culturally limited.
Underlying these concerns were economic interests seeking to defend their investments, and other groups reluctant to grant what they saw as special privileges to Indigenous people.
These views have been influential in changes to Government priorities. Since the election of the Coalition government in March 1996, the commitment by Government to reconciliation has seemed to dim, with arguments between the Aboriginal Affairs Minister and his advisory body, ATSIC, followed by major cuts to ATSIC funding in the August 1996 Budget. This was further exacerbated by the so-called Wik judgment of the High Court in late 1996, which said that the Native Title Act had not extinguished native title on all pastoral leases, and that furthermore, it may well be possible for both native and leasehold title to coexist.
In response to the Wik judgment, the Government in July 1998 successfully passed the Native Title Amendment Act 1998, commonly referred to as the 10 Point Plan, with the stated goal of providing certainty in land use issues to the state and territory governments and pastoral and mining industries, while respecting the principles of native title.
But the modifications in the Act to Indigenous rights under the Wik rulings were strongly opposed by Indigenous groups around Australia.