By Jennifer Thompson
On July 8, the federal Senate passed John Howard's Wik bill. The bill's amendments to the 1993 Native Title Act continue a long history of Aboriginal dispossession.
From 1788, the British legal system and colonists treated the land as ownerless and available for acquisition: the terra nullius doctrine.
Since Aborigines had received no grant from the crown, they had no title to land. Colonial or state reserves for Aborigines did not even give security of occupation, much less title. For example, 800,000 hectares of Aboriginal reserves were confiscated in the four years after the 1957 ILO convention on the protection of indigenous populations was adopted.
In the 1930s Aboriginal activists, fighting to maintain their links with reserve lands, identified their struggle with that of Native Americans. The decolonisation struggles sweeping Asia and Africa in the '50s and '60s inspired indigenous people. In the '60s emerged the NSW freedom rides. In the late '50s the Federal Council for Aboriginal Advancement (later renamed FCAATSI to include Torres Strait Islanders) pressed the labour movement to support equal rights for Aboriginal workers.
There were successful struggles against the forcible closure of reserves in 1963 at Lake Tyers in Gippsland and Cumeragunja on the Murray River in NSW. There was also a renewed breakout against dispossession and super-exploitation, such as the Gurindji struggle, which began in 1963.
In 1967, a federal referendum altered the constitution to allow the commonwealth to make laws for Aboriginal people. In that same period, the Gurindji people's struggle had become a land claim, giving new impetus to demands for land rights. FCAATSI organised vital trade union solidarity in the southern states.
In 1970-73, there were at least 25 meetings and conferences held in NSW rural areas, as Aboriginal organisations like the Lands and Rights Council and the Lands Board gave communities a forum to plan a concerted campaign against the dislocation and dispossession policies of the NSW government.
In 1971 in the NT Justice Blackburn rejected the Yolngu people's challenge against the excision of the Nabalco bauxite mine from their traditional land at Yirrkala, because Australian common and property law did not recognise indigenous rights to land. For the next two decades, until the 1992 Mabo judgment rejected Blackburn's judgment, Aboriginal activists therefore aimed to influence politicians to create new laws.
To express frustration with the failure of the federal Liberal government to make formal equality translate into real improvements, Aboriginal people planned a series of protests for capital cities on January 26, 1972.
The demonstration planned for Canberra grew to be the focus because of Prime Minister William McMahon's outright rejection of land rights. The result was the Aboriginal Tent Embassy, set up on the lawns of Parliament House.
Although the embassy was violently broken up in July, the movement was there to stay. Five years later, the Aboriginal Land Rights (NT) Act was enacted.
South Australia
In 1965, the Aboriginal Lands Trust Act permitted the purchase or transfer of traditional lands to a trust run by Aboriginal people.
In the north and west, large areas have been returned to traditional owners under inalienable freehold title, through two acts sparked by land rights campaigns: the Pitjantjatjara claim in 1981, which won full title over their lands, and the Tjarutja people's similar claim for the Maralinga region in 1984. In 1994, the federal government settled the compensation for the effects of the 1950s and 1960s nuclear tests conducted by the British government.
Northern Territory
The ALP's 1972 election campaign promised land rights, but instead of a national land rights law, Whitlam appointed Justice Woodward to look at a land rights law for the Northern Territory. His 1974 report supported freehold land rights, including the right of veto over mining developments.
The ALP's draft bill was amended by the Fraser Liberal government in 1976, to reduce the land claim options and give the NT Legislative Assembly responsibility for "complementary" legislation covering sacred site protection, sea closures and permits for access to Aboriginal land.
Most of the existing Aboriginal reserves and land held by missions, some 258,000 sq km, and 2300 sq km of stock routes and stock reserves were granted under freehold title to Aboriginal land trusts.
The land claims provision for unalienated crown land and Aboriginal-owned pastoral leases allowed 49 successful land claims by traditional owners, by 1995, covering a further 279,348 sq km. A further 2400 sq km of some of the driest desert was recently handed back to claimants near the WA border. Many claims are still outstanding.
The act is now under review by John Reeves QC, who has acted for the NT government against land rights claims, and who is specifically targeting the mining veto provisions of the act.
After a campaign by the mining lobby in 1987, the Hawke Labor government weakened the mining veto right and enacted a clause preventing land claims after June 5, 1997.
A 1989 amendment aimed at giving Aboriginal people some living areas allowed traditional owners to claim government-owned stock routes on pastoral leases, but the right to excise small living areas from pastoral leases was left to the hostile NT government.
NSW
The 1983 NSW Land Rights Act, to last 15 years, allowed Aboriginal people to claim unused crown land and granted certain Aboriginal reserves inalienably to elected land councils. A land acquisition fund was established, 7.5% of state land tax revenue going to the land councils (half) and an investment fund (half) which will fund the land councils after this year.
A three-tier structure of 117 local land councils, 13 regional councils and a state council was set up to allow community control. This structure was amended in 1990-91 to centralise finances and power at the state council level. Election of regional and state councillors from the local councils was replaced by direct election, reducing the pressure for community accountability.
In 1996, the state government transferred five national parks areas to Aboriginal ownership and management jointly with the National Parks and Wildlife Service: Mount Yarrowyck Nature Reserve near Armidale, Mount Grenfell Historic Site near Cobar, Mungo National Park near Mildura, Mootwingee National Park and Historic Site and Coturaundee Nature Reserve near Broken Hill and NSW Jervis Bay National Park near Nowra.
Other national parks and reserves with Aboriginal cultural, spiritual and social significance may be nominated for transfer to the Aboriginal Land Council, and leased back to the NPWS under joint management.
Queensland
In 1957, the state government allowed the excision of large bauxite mining leases for Comalco, on Cape York, at the expense of the Aboriginal communities, living under the auspices of church-run missions at Arukun, Weipa and Mapoon. At Weipa, the company was granted 1,482,500 sq km of the 1.6 million sq km of native reserve.
Those who remained at Mapoon after the church pulled out in 1963 were arrested in the night and had their houses burned down by order of the Native Affairs Department. The dislocated community was crowded on to other reserves.
The 1984 Land Act (Aboriginal and Islander Land Grants) Amendment Act granted some lands to Aboriginal communities.
In 1991, the Goss Labor government passed a land rights bill that provided no land acquisition fund, and which limited claims to unalienated crown land, in particular 15 national parks.
WA
The 1933 Land Act gave Aboriginal people the right to enter only unenclosed and unimproved areas of pastoral leases to "seek their sustenance", but not for cultural or spiritual purposes.
The state Aboriginal Lands Trust Act is the most restrictive, allowing only the grant of 99-year leases covering traditional lands to Aboriginal communities, instead of freehold title. In 1996, the Mugarinya community, in the Pilbara, was the first Aboriginal community to be granted a perpetual lease, over a 1598 hectare portion of pastoral lease near Port Hedland held by the Lands Trust.
Fifty-two per cent of WA is unalienated crown land, containing significant mineral deposits. The Land (Titles and Traditional Usage) Act of 1993 aimed at extinguishing native title and replacing it with limited "traditional usage". This law was struck down in 1995 by the High Court, because it contravened the Racial Discrimination Act.
ACT
In 1987, the Wreck Bay Aboriginal community in the commonwealth territory of Jervis Bay was granted 403 hectares of land. After a 1992 submission by the community council, the government transferred the land and water of the Jervis Bay National Park and Botanic Gardens (6378 ha) to the community and established joint management in 1996.
Victoria
Victorian Aborigines suffered continual displacement and relocation. The Yorta Yorta people's traditional lands in the Murray River Valley stretch over South Australia, Victoria and NSW, mostly the latter two. They have made 18 legal attempts to claim their land since 1860, including the current claim over Barmah and adjoining forests, lodged in 1984.
The Yorta Yorta, who were relocated and regrouped at Cumeragunja in the 1880s, have had only 485 hectares of that former reserve returned, under the NSW land rights law.
A total of 29.91 sq km of land — 0.013% of Victoria — was returned to Victorian Aborigines through land acts between 1970 and 1992.
Tasmania
The 1995 Aboriginal Lands Act, won after a long struggle by Tasmanian activists, transferred to Aboriginal ownership 12 crown land sites with historical, cultural, social and economic significance. The land is held in perpetuity by the Aboriginal Land Council established by the act.