Terra Nullius Australis
“WE HAVE ALL decided that we don’t want to have church any more. It seems now that even the church has let us down.”
With these words the rector of a bush parish in the rural New South Wales diocese of Armidale heard that one of his congregations were boycotting Church because of media reports of statements made by various Anglican leaders on Native Title.
The recent meeting of the Australian General Synod heard from the Bishop of Rockhampton how many pastoralists in his vast See in central Queensland felt marginalised and powerless in much of the debate on Native Title.
The same General Synod was treated to characteristic headline hunting by the Bishop of Bathurst when he predicted “blood in the streets” of rural Australia over race relations.
The Federal Parliament is the scene for emotive debate over Aboriginal Land Rights and sensitive issues related to Reconciliation between indigenous and non-indigenous Australians. That complex debate presents both a challenge and a danger for Australia as it prepares to mark the centenary of its nationhood in 2001.
Under Australia’s federal system of government responsibility for issues of race relations are shared between the state and national governments. In 1967 the Australian people voted in a referendum to give power to the Commonwealth of Australia to legislate on issues related to welfare of the Aboriginal and Torres Strait Island peoples. Responsibility for a range of matters that directly impact upon indigenous people, such as health, education and the criminal law remains, however, a matter within the province of the states.
For Australia’s Aboriginal and Torres Strait Islander peoples the Land holds a particular spiritual and cultural significance. Access to land title for indigenous Australians is seen as pivotal in any developmental policy that seeks to enhance social and economic conditions for this ancient continent’s original inhabitants.
Unlike other former British colonial territories such as New Zealand, USA or Canada, no treaties were ever entered into between the Crown and the Australian indigenous population.
Over some twenty years successive federal governments have attempted to put in place a scheme of Native Title that would recognise the claims of indigenous Australians without adversely impacting upon legitimate pastoral and mining enterprises that are important to the continued viability of rural Australia.
In two landmark cases, Mabo (1992) and Wik (1996) the High Court of Australia controversially remade the legal and political landscape of Australia.
The High Court in Mabo found that Terra Nullius (literally “land belonging to no-one”) did not apply under the English common law inherited by Australia and that Aboriginal and Torres Strait Island people had native title to all of Australia before Governor Philip landed in 1788. The Court also held that freehold title extinguished native title and therefore no claims can be made by indigenous people for such land.
Native title would also be extinguished whenever the Crown used the land for some public purposes inconsistent with the native title holders’ right to access and use.
In Wik the High Court ruled that pastoral leases and native title rights can coexist. The Court found that last century, the colonial authorities in London (perhaps surprisingly) had always insisted that pastoralists should permit continued indigenous access to the vast pastoral leases. Such Crown leases never gave a right of exclusive possession.
42% of Australia is under pastoral lease. Kerry Packer (well known international media owner and polo player) is the seventh largest pastoralist in the country. US Citizen Rupert Murdoch (who controls about 70% of Australian newspapers) is also a major leaseholder. Other big stake holders include the Sultan of Brunei and Lord Vesty.
Mining, media and pastoral interests have applied considerable pressure to have the Federal Parliament legislate to overturn aspects of the Wik decision and to amend current provisions of federal statutes on Racial Discrimination and Native Title.
The Prime Minister has sought passage of legislation to implement his so-called “Ten Point Plan”. This measure has attracted considerable criticism from indigenous groups and the churches. The bill has been blocked in the Senate and if rejected a second time in the next month it could provide a trigger for a Double Dissolution which would send both Houses of the Federal Parliament to the polls.
The heat generated over the issue of Native Title has done little to encourage informed resolution of the sensitive issues. Media stories peddled by some vested interests have provoked fear amongst many Australians who are given to believe that freehold title, including the family home, and genuine pastoral activities are under threat.
The recent General Synod considered a motion promoted by the diocese of the Northern Territory that acknowledged the long and close connection of indigenous people with the land, disruption of that connection, the suffering of indigenous people and the recognition of their rights.
The motion spoke against any election based on the issues of race, and of the need for sensitive consultation, of the Christian obligation to speak out for just rights and the addressing of wrongs of the past.
General Synod was asked to urge all Australians to seek an honourable, decent and worthy compromise in the issue of native title, further the cause of true reconciliation, that there might be a more secure, certain and prosperous Australia for all Australians.
Bishop Stone of Rockhampton suggested to Synod that it was easy to pass resolutions at meetings of the Church, and refer the matter to someone else. “We have a role to play back in the communities we have come from,” the bishop said. “Our role, as the local Church, could be to take some responsibility for fostering informed debate and understanding, and to facilitate an examination of the issues by the parties involved and the general public.”
For many months Church leaders of all traditions across the nation have urged the Prime Minister to initiate a national apology for the forcible removal of indigenous children from their families. Such an apology is seen as an important step towards Reconciliation.
Despite the precedent recently set by the Canadian government the Australian Government has declined to issue a similar apology.
Many believe that Australians have buried the hatchet, but we have left the handle out. Whenever it’s convenient, we give the handle a twist.
Martin Hislop is Anglican Chaplain to the University of Ballarat in the Province of Victoria