The decision of the High Court this week that found native title is ‘property’, is bold.
It potentially opens the door to huge compensation to Indigenous groups in the Northern Territory. The matter centred around the Commonwealth’s allowing of a mine in northeast Arnhem land in 1968.
The decision effectively purports that native title is not just ‘a bundle of rights’ but ‘proprietary in nature’. It presents the notion that, like any other landowner, compensation should be paid for compulsory acquisition.
The decision is thick with lawyers and a blur of tricky Constitutional arguments.
But the cultural truth behind all of this is very simple.
It is written about in The Whole Truth, a book whose singular intention was to help people understand as simply as possible, the culture of the Indigenous people as witnessed and recorded in the early days of the new colony. It relies on prime source material written at the time, of the time.
Stories emerging since the High Court ruling say that the findings ‘prove’ compensation is owed to Aboriginal people from the Commonwealth. It may yet emerge that the only thing proven is that the law can be an ass.
A key – and clear point – in the early understandings of traditional Aboriginal culture is that they did not own land.
Volume III, Part 2, of The Whole Truth deals with this.
In 1804 Lieutenant-Colonel Collins in An Account Of The English Colony in New South Wales 1788-1801 wrote about property as referring only to the items they possessed. He said, “Their spears and shields, their clubs and lines, &c. are their own property, they are manufactured by themselves, and are the whole of their personal estate.” He went on to describe the passing-on of land by men to other men in a kind of “hereditary property…”
It is important to note that the land was never owned and it was passed on only to men. How is this ‘lore’ accounted for in the modern context of Indigenous land ownership? Does, or should, native title only apply to men?
In 1861, in Australia Its Rise, Progress and Present Condition, William Westgarth wrote of Indigenous tribes living within a familiar area but without any sense of ownership of it. “They have no fixed habitations… Though each family or tribe has a generally recognised boundary within which they hunt, and consider their “sit-down” or territory, and beyond which they seldom stray, still they neither exchange, buy, nor sell land among each other; and when their territory was taken possession of by the British, they demanded no equivalent, as the New Zealanders had done – they cannot conceive a right of claim to that which is fixed and immovable. Not having any moveable property beyond their spears, boomerangs, clubs, shields, opossum-skin rugs, and baskets, their wealth is less than that of an industrious bee, and their idea of property inferior to that of a beaver.”
The Whole Truth also provides a modern view of Indigenous land ownership written in 2012 by the ANU’s Professor Bill Gammage in The Biggest Estate on Earth. More than a decade ago, he wrote: “Country was not property … a family head might speak of a country as his, but only because he had a right and duty to manage it. He did not own it, for he could not dispose of it: the Law decreed who inherited.”
History repeatedly tells us then, that there was no economy, no coin, no commercial system that could enable land to be owned, bought and sold as it is under Property Law today. And yet today, aided and abetted by the lawyers, Indigenous activists wish to present a different tale. It is a tale that mimics the British system and mimics for financial advantage. For as Gammage puts it: they did not own land for they could not sell it.
It brings into direct question why one would pay compensation to someone for something they do not own?
Even Brough Smyth in his masterful and cross-correlated work of 1878 called Aborigines of Victoria, puts Indigenous land ownership very simply: “It is not at all clear from the statements here quoted that there was anywhere, in the ordinary sense of the word, individual property in land.”
It is an important point to make.
It is a point about tribal boundaries. These days, neighbouring tribes that once fought each other have coalesced to form Land Corporations which then hold the Native Title rights across the swath of land totaling the component tribes.
At no point did a tribe ‘own’ land beyond its own patch. As such, the collation of tribal space to create a bigger land claim does not in any way relate to traditional Aboriginal cultural ways. It makes a mockery of ‘native title’ and is a case of eyes wide shut in relation to the truth of their tribal boundaries.
The High Court case has stirred public angst and spawned a plethora of counter-claims in relation to compensation.
For example, if the Indigenous people own the land as the court concludes, do they in turn owe a financial back-log to Commonwealth, State, and Local Governments for matters such as land tax, rates, roads, water supply and the like?
Fingers are pointing madly in all directions. It happens when you put a boot into Pandora’s Box.
There is perhaps one more point to make in relation to compensation. It goes to the claims by the Indigenous activists that Aboriginal Australians have always ‘cared for country’ and that colonial development and mining activity have destroyed or removed that care for country over 45,000 years.
In the same chapter on Ownership, The Whole Truth concludes with an extract from Yuval Noah Harari’s Sapiens – A Brief History Of Humankind, 2011. In this, Harari challenges the notion that the greatest damage done to Australia’s natural environment was due to British imposition. He says:
“The first human footprint on a sandy Australian beach was immediately washed away by the waves. Yet when the invaders advanced inland, they left behind a different footprint, one that would never be expunged. As they pushed on, they encountered a strange universe of unknown creatures that included a 200-kilogram, two-metre kangaroo, and a marsupial lion, as massive as a modern tiger, that was the continent’s largest predator. Koalas far too big to be cuddly and cute rustled in trees and flightless birds twice the size of ostriches sprinted on the plains. Dragon-like lizards and snakes five metres long slithered in the undergrowth. The giant diprotodon, a two-and-a-half-ton wombat, roamed the forests…Marsupial mammals were almost unknown in Africa and Asia, but in Australia they reigned supreme.
Within a few thousand years, virtually all of these giants vanished. Of the twenty-four Australian animal species weighing fifty kilograms or more, twenty-three became extinct. A large number of smaller species also disappeared. Food chains throughout the entire Australian ecosystem were broken and rearranged. It was the most important transformation of the Australian ecosystem for millions of years.”
So much for the imaginary, Blue-Banded Bee. These animals were real.
If the Indigenous activists are to continue to pursue legally the ‘you-owe-me’ attitude, then stories about how Australia has changed might make them ponder who-really-owes-who compensation now?
