White Australia has a black history

May 21, 1997

By John Tomlinson

From 1788 until today, race relations in this nation have been marred by misunderstanding, fear, inordinate violence and dishonesty. The current hysteria surrounding the High Court's Wik judgment is based on false understandings not inherently different from those portrayed in the recent ABC TV Frontier series, which dealt with early white and Aboriginal relations.

Professor Henry Reynolds discovered that, despite instructions from the British Colonial Office, it did not take long for the settlers to decide that Australia was terra nullius — an empty land.

Senator Bill O'Chee has threatened to leave the federal coalition government unless the prime minister extinguishes native title on pastoral leases. He claims that present property rights must not be undermined by judicial interference. Such a proposition presents two major problems.

Firstly, the High Court has not abolished existing property rights on pastoral leases. The court held that where there is a conflict between native title and a pastoral lessee, the legitimate rights of the lessee will prevail.

The second problem is that such an assertion attacks the duty of judges in contested property cases to determine the lawful ownership of the property.

The fact that the National Party and the pastoral lobby can call for the extinguishment of native title relates to a basic misunderstanding or denial of the reality that indigenous Australians are citizens who have a particular form of property rights on pastoral leases and unalienated crown land.

There may be some situations in which a legal case could be mounted to argue for the extinguishment of native title on a designated parcel of leasehold land. The grounds on which such a case might be mounted would not be dissimilar to that where a government instrumentality seeks a property for a specific purpose, acquires it and consequently is required to pay fair compensation.

Such a situation is a far call from legislating to remove an entire race's property rights. Such an action would be unconscionable and a breach of the Racial Discrimination Act, ensuring that legal action would be taken and the matter would eventually be back before the High Court.

The people of this nation, in the 1967 referendum, gave the Commonwealth the power to legislate on matters concerning indigenous Australians. Extinguishment of native title on all pastoral leases is an arbitrary action. The outcomes for Aborigines and Torres Strait Islanders are unpredictable.

Such extinguishment borders on reckless indifference, amounting to a failure of duty of care. The issue which the Wik people's lawyers used to bring their case in the first place was the state's negligence in carrying out its duty of care.

Various international forums have been used by indigenous Australians to raise awareness of their treatment at the hands of Australian governments. Australia would again be brought to unfavourable international attention if native title were extinguished. Such international opprobrium would adversely affect trade, tourism and the profitability of the 2000 Olympics.

Some lobbyists claim that pastoral business operations will be interrupted unless they are provided certainty, and that their properties can't be owned by more than one party. Due to the vagaries of the weather, pastoralists' lives are uncertain, as those of us who contributed to drought relief funds are aware.

Commodity prices rise and fall. State and Northern Territory governments now control what pastoral lessees can do on their land. In some areas of production and disease control, the Commonwealth government can command pastoralists to behave in a certain manner. Local government can also influence what occurs on properties.

Each of these levels of government could affect a pastoralist's plans. Environmentalists are increasing their interest in pastoral practices, and they too are a potential source of uncertainty.

The suggestion that pastoral properties can be owned only by one party is nonsense. The majority of large pastoral holdings are owned by national and transnational corporate entities with thousands of shareholders. Smaller pastoral leases are usually owned jointly by family companies and the bank. In remote northern Australia, Aboriginal-owned pastoral companies are becoming important cattle producers. There are few, if any, pastoral properties owned by one person.

The Wik decision came in the wake of the Mabo decision, which overturned nearly 200 years of pretending that Aborigines had no property rights — Mabo established that terra nullius was based on bad law and false beliefs.

If the present federal parliament legislates to remove native title on pastoral properties then it will return this country to de facto terra nullius. This will erode the possibility of developing a socially just reconciliation and perpetuate the appalling mortality and morbidity statistics experienced by indigenous Australians.

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