Australia Political System: Aboriginal Land Rights

Britain founded the colony of New South Wales on the legal principle of terra nultius, a land belonging to no-one, which meant that Australia was legally unoccupied. The settlers could take land from Aboriginal people without signing treaties or providing compensation. The European concept of landownership was completely foreign to Aboriginal people and their view of the world in which land did not belong to individuals: people belonged to the land, were formed by it and were a part of it like everything else.

After WW II, Australian Aboriginal people became more organized and better educated, and a political movement for land rights developed. In 1962 a bark petition was presented to the Federal government by the Yolngu people of Yirrkala, in north-east Arnhem Land, demanding that the government recognize Aboriginal peoples' occupation and ownership of Australia since time immemorial.

The petition was ignored, and the Yolngu people took the matter to court and lost. In the famous Yirrkala Land Case 1971, Australian courts accepted the government's claim that Aboriginal people had no meaningful economic, legal or political relationship to land. The case upheld the principle of terra nullius, and the commonlaw position that Australia was unoccupied in 1788.

Because the Yirrkala Land Case was based on an inaccurate (if not outright racist) assessment of Aboriginal society, the Federal government came under increasing pressure to legislate for Aboriginal land rights. In 1976 it eventually passed the Aboriginal Land Rights (Northern Territory) Act - often referred to as the Land Rights Act.

The Aboriginal Land Rights (NT) Act of 1976, which operates in the Northern Territory, remains Australia's most powerful and comprehensive land rights legislation. Promises were made to legislate for national land rights, but these were abandoned after opposition from mining companies and state governments. The act established three Aboriginal Land Councils, which are empowered to claim land on behalf of traditional Aboriginal owners.

However, under the act the only land claimable is unalienated Northern Territory land outside town boundaries - land that no-one else owns or leases, usually semi-desert or desert. Thus, when the traditional Anangu owners of Uluru (Ayers Rock) claimed traditional ownership of Uluru and Kata Tjuta (the Olgas), their claim was disallowed because the land was within a national park and thus alienated.

It was only by amending two acts of parliament that Uluru - Kata Tjuta National Park was handed back to traditional Anangu owners on the condition that it be immediately leased back to the Australian Nature Conservation Agency (formerly the Australian National Parks & Wildlife Service).

At present almost half of the Northern Territory has either been claimed, or is being claimed, by its traditional Aboriginal owners. The claim process is extremely tedious and can take many years to complete, largely, because almost all claims have been opposed by the government. A great many elderly claimants die before the matter is resolved. Claimants must prove that under Aboriginal law they are responsible for the sacred sites on the land being claimed.

Once a claim is successful, Aboriginal people have the right to negotiate with mining companies and ultimately to accept or reject exploration and mining proposals. This right is strongly opposed by the mining lobby, despite the fact that traditional Aboriginal owners in the Northern Territory only reject about a third of these proposals outright.

The Pitjantjatjara Land Rights Act 1981 (South Australia) is Australia's second-most powerful and comprehensive land rights law. This gives Anangu Pitjantjatjara and Yankunytjatjara people freehold title to 10% of South Australia. The land, known as the Anangu Pitjantjatjara Lands, is in the far north of the state.

Just south of the Anangu Pitjantjatjara Lands lie the Maralinga Lands, which comprise 8% of South Australia. The area, largely contaminated by British nuclear tests in the 1950s, was returned to its Anangu traditional owners by virtue of the Maralinga Tjarutja Land Rights Act 1984 (South Australia).

Under these two South Australian acts, Anangu can control access to land and liquor consumption. However, if Anangu traditional owners cannot reach agreement with mining companies seeking to explore or mine on their land, they cannot veto mining activity; an arbitrator decides if mining will go ahead. If mining is given the green light, the arbitrator will bind the mining company with terms and conditions and ensure that reasonable monetary payments are made to Anangu.

Outside the Northern Territory and South Australia, Aboriginal land rights are extremely limited.

It was only very recently that the non-Aboriginal community, including the Federal government, came to grips with the fact that a meaningful conciliation between White Australia and its indigenous population was vital to the psychological well-being of all Australians.

In May 1982, five Torres Strait Islanders led by Eddie Mabo began an action for a declaration of native title over the Queensland Murray Islands. They argued that the legal principle of terra nullius had wrongfully usurped their title to land, as for thousands of years Murray Islanders had enjoyed a relationship with the land that included a notion of ownership.

In June 1992 the High Court of Australia rejected terra nullius and the myth that Australia had been unoccupied. In doing this, it recognized that a principle of native title existed before the arrival of the British.

The High Court's judgment became known as the Mabo decision, one of the most controversial decisions ever handed down by an Australian court. It was ambiguous, as it didn't outline the extent to which native title existed in mainland Australia. It received a hostile reaction from mining and other industry groups, but was hailed by Aboriginal people and the prime minister of the time, Paul Keating, as an opportunity to create a basis of reconciliation between Aboriginal and non-Aboriginal Australians.

To define the principle of native title, the Federal parliament passed the Native Title Act in December 1993. Despite protest from the mining industry, the act gives Australian Aboriginal people very few new rights. It limits the application of native title to land which no-one else owns or leases, and also to land with which Aboriginal people have continued to have a physical association.

The act states that existing ownership or leases extinguish native title, although native title may be revived after mining leases have expired. If land is successfully claimed by Aboriginal people under the act, they will have no veto over developments, including mining. It will no doubt take a number of years and court cases before the implications of the Native Title Act are fully understood.