Geography at the Millenium

Speech by Dr Bill Jonas, Aboriginal
and Torres Strait Islander Social Justice Commissioner to the Institute
of Australian Geographers, 28 September 1999

I would like to begin
by acknowledging the Eora people, the traditional owners, custodians and
kinsfolk of the land where this conference is being held.

At a recent meeting
of the Australian Human Rights and Equal Opportunity Commission, the Commissioners'
declared that the rights of Indigenous people raised the most significant
human rights issues in this country at this time. At a meeting in Canberra
two weeks ago, the country's Indigenous leaders stated that a substantial
number of issues must be the subject of negotiation between Aboriginal
people and the Commonwealth Government before reconciliation could become
a reality. These issues comprised a statement of Indigenous rights. Any
nation which is to enter the new millennium with maturity and dignity
must allow for the exercise and enjoyment of human rights by all of its
citizens and clearly, this means that Australia must pay special attention
to the rights of Aborigines and Torres Strait Islanders.

Geography and Geographers,
with their very special perspective on the world, can contribute in the
human rights arena and I will say something about this today.

I want to focus this
address on one specific Indigenous right, and this is Native Title. In
the time-honoured tradition of geography I will use this as a case study
from which we can make at least some generalisations. I believe
that at this time, Indigenous rights and Native Title provide an area
where geographers can make an important contribution at different levels
and in ways which may advance the discipline and provide benefits to Indigenous
people on the ground. I also believe that the growing dialogue between
geographers and anthropologists about Indigenous issues is of great significance,
and I will begin by referring to the work of a specific anthropologists,
work which I hold in the highest regard.

Some years ago when
I was on the Australian Heritage Commission we asked this anthropologist,
Dr Deborah Bird Rose to write an essay on Aboriginal Australian's concepts
of landscape, and wilderness, two subjects which of course are still dear
to the hearts of many geographers. The resulting essay, 'Nourishing Terrains',
is, I believe one of the finest pieces of writing to ever deal with these
issues and it should be on the reading lists of all students of geography,
anthropology, ecology, environmental studies and even English literature
in this country.

In the cases of wilderness,
Rose points out that this is a concept which has been imported into Australia,
mostly from Europe and especially North America where, by and large it
refers to areas which are remote from humans. She quotes David Brower,
first executive director of the Sierra Club and founder of Friends of
the Earth, who jokingly says that wilderness is a place 'where the hand
of man has not yet set foot.' But, as Rose points out:

A definition
of wilderness which excludes the active presence of humanity may suit
contemporary people's longing for places of peace, natural beauty, and
spiritual presence, uncontaminated by their own culture. But definitions,
which claim that these landscapes are 'natural' miss the whole point of
the nourishing Australian Terrains. Here on this continent, there is no
place where the feet of Aboriginal humanity have not preceded those of
the settler. Nor is there any place where the country was not fashioned
and kept productive by Aboriginal people's management practices. There
is no place without a history; there is no place that has not been imaginatively
grasped through song, dance and design, no place where traditional owners
cannot see the imprint of sacred creation (p18).

In other words, in
Australia there is NO wilderness.

I was expanding on
this theme of 'no wilderness in Australia' to a colleague of mine once.
He was also leading light in the Wilderness Society. He became very angry
with me. While eventually conceding, or at least saying that he could
see the point I was making, he nevertheless declared, in a very cross
manner: 'but the average person in the street doesn't see it like that.'
And he was right. The average person does not see it like that
and I suspect that most geographers don't see it like that. But we must
remember that the average person in the street, and again I suspect most
geographers, did not see Terra Nullius for what it was until the High
Court's Mabo judgement only seven years ago.

Terra Nullius is
the legal equivalent of seeing wilderness where in fact there is a society;
seeing atomism where in fact there is a collectivism; seeing no law where,
in fact, law has governed men and women for thousand and thousands of
years. The ideological basis of terra nullius was uncovered in the Mabo
decision.

The view
was taken that, when sovereignty of a territory could be acquired under
the enlarged notion of terra nullius, for the purposed of the municipal
law that territory (though inhabited) could be treated as a 'desert uninhabited'
country. The hypothesis being that there was no local law already in existence
in the territory, the law of England became the law of the territory (and
not merely the personal law of the colonists). Colonies of this kind were
called 'settled colonies'. Exhypothesi, the indigenous inhabitants of
a settled colony had no recognised sovereign, else the territory could
have been acquired only by conquest or cession. The indigenous people
of a settled colony were thus taken to be without laws, without a sovereign
and primitive in their social organisation. P36 Mabo.

The High Court in
Mabo also uncovered the discriminatory practices which were veiled
by the legal fiction of terra nullius.

It would
be a curious doctrine to propound today that, when the benefit of the
common law was first extended to Her Majesty's indigenous subjects in
the Antipodes, its first fruits were to strip them of their right to occupy
their ancestral lands. Yet the supposedly barbarian nature of indigenous
people provided the common law of England with the justification for denying
them their traditional rights and interests in land, as Lord Sumner speaking
for the Privy Council said In re Southern Rhodesia

The estimation
of rights of aboriginal tribes is inherently difficult. Some tribes
are so low in the scale of social organisation that their usages and
conceptions of rights and duties are not to be reconciled with the institutions
or the legal ideals of civilised society. Such a gulf cannot be bridged.
It would be idle to impute to such people some shadow of the rights
known to our law and then to transmute it into the substance of transferable
rights of property as we know them. P39

The recognition of
native title by the High Court in 1992 was a recognition that law did
govern Aboriginal society when sovereignty was acquired by the British
in 1788 and that Indigenous law was a subtle and elaborate system which
provided a reasonably stable order of society.

With the overturning
of terra nullius the requirement that Indigenous laws be 'reconciled with
the institutions or the legal ideas of civilised society' was also abandoned.
In deciding whether to recognise Indigenous law it was no longer necessary
to find that the Indigenous relationship to land bore a resemblance to
those already known to the common law. In fact to do so was discriminatory.

The theory
that the indigenous inhabitants of a 'settled' colony had no proprietary
interest in the land thus depended on a discriminatory denigration of
indigenous inhabitants, their social organisation and customs. As the
basis of the theory is false in fact and unacceptable in our society,
there is a choice of legal principal to be made in the present case. This
Court can either apply the existing authorities and proceed to inquire
whether the Meriam people are higher 'in the scale of social organisation'
than Australian Aborigines whose claims were 'utterly disregarded' by
existing authorities or the Court can overrule the existing authorities,
discarding the distinction between inhabited colonies that were terra
nullius and those which were not. P40

The course which
the court chose to take in Mabo is well known and represented a
major advance in the struggle for recognition by Indigenous Australians.
Native title, whilst recognised by the common law, has its origins in
and is given its content by the traditional laws acknowledged by and traditional
customs observed by the indigenous inhabitants of a territory.

Native title has
brought an end to terra nullius, and with this a kind of peace. But it
has also signalled a new battle. The struggle now is not so much against
the non-recognition of Indigenous culture but rather a struggle over the
meaning and value that non-Indigenous law should give it. It is my role,
as Social Justice Commissioner, to ensure that the principles of equality
guide the outcome of this struggle. So long as the common law continues
to recognise that traditions and customs of Indigenous people and give
them a meaningful place within Australian society tody native title exists
as a declaration of justice. Where however, the common law applies tests
and rules which reduce native title to a right that cannot be enforced
then Indigenous culture will again have no place within Australian society.

A disturbing trend
in some of the recent Court decisions is the characterisation of native
title as a bundle of rights rather than a title to land. Under the 'bundle
of rights' approach, native title rights are no more than the activities
which evidence an observance of traditional customs and laws. If the present
claimants hunt and fish on the land as their predecessors once did, then
the native title right will be interpreted as a right to hunt and fish
on the land. If the claimants enter the land to visit a burial site or
maintain traditional sites of significance then the native title right
will be a right to come onto the land for such purposes. This approach
to native title is a very limited one. Native title is no more than the
remnants of a society which is no more.

An alternative approach
to native title is to see the present day activities of hunting and fishing,
maintaining significant sites etc, as evidence of a broader concept of
Aboriginal rights; one which acknowledges the system of law and culture
arising from the significant connection of an Indigenous society with
land but which also acknowledges that this law and culture is dynamic
and capable of evolution in a contemporary world. The distinction between
these two characterisations of native title is an important theme in the
Canadian cases and is emerging as equally significant in the Australian
common law.

It is important that
the full spectrum of rights are available to Indigenous people within
Australia. To diminish our rights to a set of activities rather
than a complex and interwoven relationship with the land is to give native
title little value or meaning within the non-Indigenous law.

There is another
forum where this struggle for meaning and value of native title is taking
place. Twelve months after the Mabo decision was handed down the Native
Title Act was passed. While the Act left the recognition of native title
to the common law it clearly delineated those situations in which native
title could be extinguished. In relation to past acts of extinguishment
of native title (before 1994) the Act validated those grants which would
have been invalid because of the failure to recognise the existence of
native title. The basis for the invalidity was that, after 1975 with the
passing of the Racial Discrimination Act native title, like any other
title, could not be appropriated unless certain procedures were followed,
such as notification, compensation, appeal etc. The Mabo decision
meant that many appropriations by the Crown had occurred since 1975 without
bestowing procedural rights on native title holders. In relation to future
acts by the Crown, native title was to be treated the same as ordinary
(freehold) title. In addition native title holder and claimants had a
right to negotiate in relation to mining activity and certain compulsory
acquisitions.

In its overall effect
it was felt that the Native Title Act was generally beneficial to Indigenous
people. The same cannot be said of the amened Native Title Act. The CERD
Committee recognised this in its recent decision which examined the amendments
to the Native Title Act in relation to Australia's obligations under the
Convention on the Elimination of All Forms of Racial Discrimination, to
which Australia is a signatory.

While the
original Native Title Act recognises and seeks to protect indigenous title,
provisions that extinguish or impair the exercise of indigenous title
rights and interests pervade the amended Act. While the original 1993
Native Title Act was delicately balanced between the rights of indigenous
and non-indigenous title holders, the amended Act appears to create legal
certainty for governments and third parties at the expense of indigenous
title.

Clearly it is the
Committee's view that the gains made in the original Act have been lost
as a result of the recent amendments to the NTA. The validation of otherwise
invalid non-Indigenous interests granted between 1994 and 1996, the extinguishment
of native title with respect to classes and schedules of non-Indigenous
interests, the upgrade of pastoral leases without negotiation in respect
of conflicting native title interests, as well as the winding back of
the right to negotiate in respect of mining and certain compulsory acquisitions
mark a trail of dispossession through the amendments.

The exact impact
of the amendments on Indigenous people is still taking shape in every
state in Australia. As a result of the amendments, in order to follow
native title legislation one must venture into a myriad of state legislation
to determine what particular regime applies to any identified parcel of
land in respect of a specified act, decision, grant or enactment. In Queensland
alone there is likely to be 53 separate regimes which apply depending
on the contingencies of the situation. Each state has devised or is considering
devising separate regimes in respect of validation, confirmation, the
right to negotiate, compulsory acquisition and dispute resolution. Within
the right to negotiate regime there is the possibility that separate processes
apply in respect of exploration, tin and alluvial gold mining, opal and
gem mining, mining and compulsory acquisitions on pastoral leasehold land,
within towns or cities, or on reserves. Terra nullius has been replaced
by a plethora of State and Commonwealth legislation which gives native
titleholders different rights and native title different meanings.

One of my aims as
Social Justice Commissioner is to ensure that the human rights of Indigenous
people are brought to the forefront in the development of the many native
title regimes being devised presently at the state level. One way of doing
this is to ensure that the standards in the NTA which establish the limit
of the State's capacity to legislate in respect of native title, incorporate
the principles of equality and non-discrimination. Unfortunately the Act
fails to set standards according to these principles. States are left
to redraw the legal and political boundaries around native title with
the result that less land and fewer rights are available to native title
holders. Within the native title estate native title rights are determined
by reference to the boundary fences of a pastoral lease, the edges of
reserve land, the limits of towns or cities, and the border of a state
or territory.

The issue of Nature
Title will certainly flow into the next century. And many of those aspects
which I've been talking about are, I should think, the sorts of things
that geographers dream of: land use patterns, land use conflicts, land
management practices, boundaries and edges, limits and borders, change
over time and increasingly international pressures on internal activities.
Combining these, or approaching these, with our great traditions of mapping
and fieldwork would provide legitimate activities for many, many geographers
for many years to come.

But I suggest that
in this native title area, as in the whole human rights arena, some other
dimensions should be added by geographers and by the geographical profession.

But I suggest we
go beyond these subject matter areas into adopting a perspective which
can guide our approach to our subject and be intellectually and morally
fulfilling at the same time. If we adopt a social justice or human rights
perspective, or we place our geographical research in a human rights framework
we will be guided by a line of inquiry that asks: who gains and who loses
as the result of particular activities and practices. Clearly, where non-Indigenous
interests are preferred over Indigenous interests, the legislation, the
activities, the practices are discriminatory. When new legislation is
introduced which allows certain practices, we need to ask if the legislation
taken as a whole discriminates against Indigenous interests or if there
is a balance between the gains and losses of the legislation and the activities
which it authorises. Answers to these questions may also be illuminated
by the insights gained from seeing the world from an Indigenous point
of view. This is where the dialogue with anthropologists such as Deborah
Bird Rose can be so useful.

Identification of
subject matter and adopting a human rights framework can be further supplemented
by practical action. The institute of Australian geographers is, of course,
comprised of a diverse membership but my memory of it is as a membership
of good will when the issues concerning the needy and vulnerable in our
society are concerned. A group of the country's leading intellectuals
can form an important group to lobby for change. One of the things which
I learned from working in Canberra is that among some politicians and
legislators, a lobby group of academics is regarded as quite a powerful
force. There are, of course, those academics and others of particular
leanings who argue that advocacy and scholarship should not mix, lest
the latter lose it objectivity. Reason does not appear to influence this
lot, who also have failed to notice that the myth of scientific objectivity
was exploded years ago. They can be difficult to ignore but for the most
part is possible to do so.

And finally, subjects,
frameworks, perspectives, insights and advocacy can all be enhanced when
there are more Indigenous people practising the profession. I am delighted,
warmed and heartened by the knowledge that the Institute is taking positive
steps to recruit and train Indigenous geographers and I commend this trend
and hope that it continues.

Last
updated 1 December 2001