Thursday, February 05, 2009

The Great Land Grab, by Michael Bachelard

This is an excellent short book on the controversial issue of Australian native title, and the so called ten point plan pushed through the Senate by the then Howard government. Native title is an extraordinarily complex issue, one I’ve never fully understood, so I got this book out to try and learn more.

At the time this guide or primer was written, in 1997, the ten-point plan was still to pass through the Senate. So some parts of the book, especially the last chapter, deal exclusively with the politics that was then unravelling. So the book does have a 'step back in time' feel, although that doesn't diminish its brilliance in any way.

Before I go on, I should commend the author, Michael Bachelard, for exhibiting a nuanced and subtle intelligence when dealing with such a tricky and political subject. He takes a step back from all the hysteria the issue has raised and delicately elucidates much of the detail and minutiae of the various types of title in Australia – pastoral leases, radical title (crown land), freehold and native title.

As we all know, native title basically came into being when the High Court said that it existed in the 1992 Mabo case. Things got further complicated when the High Court in 1996 found in the Wik case that native title and pastoral leases could co-exist. This made a lot of holders of those leases extremely uneasy because they felt it did not offer enough certainty. Did this mean they could be kicked off ‘their’ land. (As Bachelard shows in this book, there was never any doubt that leaseholders would always be favoured over native title claimants.)

So here is the problem. In 1992, the High Court found that native title existed, which threatened to undermine completely how Australia saw itself. It was something Australians had never had to really think about – that Aborigines may have a prior legal claim to the land.

In 1788 when Australia was settled, or invaded, or whatever you prefer, the British Crown claimed something called ‘radical title’, which is what we now basically call crown land, that is, land that has not been claimed by anyone. The 1992 High Court finding shows that this was wrong, and that in 1788, Native Title did really exist.

Hence, what should have really happened in 1788 was the British Crown should have negotiated with the native inhabitants and hammered out an agreement. You can build here, but cannot build here. Don’t pollute this river. We need exclusive use of this area for food. And so on and so forth. The settlers were wrong to think that Native Title did not exist. (Well, I guess it never would have entered their heads as a concept.)

This of course didn’t happen. What did happen is that State governments handed out leases for very long periods of time for huge chunks of land. This business has carried on until today.
When the Wik judgement was handed down, it threw a lot of stake holders, both political and agricultural, into a state of apoplexy. The Howard government had legal advice that the High Court would not find as it did, and were taken by surprise when it found Native Title could co-exist with pastoral leases.

The whole affair does show the prerogative that non-indigenous Australians do take to the land mass of Australia; that the reality of Native Title cannot be faced without so much fear and anger. For everyone knows the bleeding obvious – the Aborigines were here first, for about 50,000 years in fact. How can this be denied?

You come away from this book feeling very sorry for indigenous Australians. Two hundred years of white settlement have changed all the rules. Trying to get back what rightfully belongs to the Aborigines is like trying to unscramble the proverbial omelette.

Australia can’t really face head on the reality of its modern political and cultural existence, otherwise our legitimacy would collapse. Or as Pauline Hanson famously said in her maiden speech: "'I am fed up with being told, `This is our land.' Well, where the hell do I go?'"

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