Who Owns the Earth?

The premise of original ownership is typically invoked as the legal basis of land rights on behalf of tribal communities which enjoyed exclusive occupation of the land in question prior to European colonisation. I contest this premise on the grounds of logical consistency, as it implicitly affirms superior ownership rights stemming from the common human ancestry that predates any subsequent colonisation. While I focus on the claims of original ownership applicable to Australia, the argument extends to all continents and regions.

If original ownership is a valid principle then every claim of exclusive tribal ownership is pre-dated by the rights of our common ancestors, on account of their earliest exclusive and uncontested possession of the entire Earth, including the present-day continent of Australia. All living humans are descendants of the same ancestors and are thus entitled to partake in the earliest possible claim of original ownership. Consequently, the argument of original ownership is at best moot, trivially applicable to all of humanity and in relation to every place.

This essay appeared in a recent Quadrant.
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It may be objected that our common ancestors did not set foot on the present-day continent of Australia. I contend that this objection is inconsequential, since the exclusive occupation of the Earth allowed our common ancestors to claim all of the planet on which they depended for survival, and did not require setting foot on every patch of land. Any demand to that effect would invalidate all claims of original ownership over continuous regions, since they inevitably include countless patches of land that were not “stood on” by the claimant’s ancestors.

We must therefore acknowledge the Original Owners of the Earth on which we are standing, the Human kind of which we are all representatives. We all share the same ancient ancestors. We are all related. Reason unites us.

According to the UN, people “are regarded as indigenous on account of descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries” (“The Concept of Indigenous People”, January 2004). The argument that all humans are indigenous people, with an equal claim to all of the Earth, neatly fits the above definition. Our common ancestors inhabited the Earth before any presently contested regions were colonised. Since all humans are guaranteed equal moral status, we all have the right not to be excluded from or limited in the use of any territory in favour of specific races or ethnicities who assert their exclusive, racial originality and deny it of others.

According to the UN Declaration on the Rights of Indigenous Peoples, “indigenous peoples are equal to all other peoples”, not better, not more entitled, not more valuable or more important. The Declaration also affirms that “all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin, racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust”, which is in conflict with the premise that a particular indigenous identity is entitled to special rights, special respect, special opportunities or privileged treatment. Nevertheless, differential treatment is legally permissible on the basis of national sovereignty.

The common argument underpinning the alleged continuity of First Nations is that indigenous tribes did not cede their sovereignty when their habitat was colonised by Europeans. I contend that this argument is also at best moot. Australia is a sovereign nation and Aboriginal people are emphatically included in this collective sovereignty and public land ownership, not deprived of it. Moreover, by claiming the entitlement to services, education, national security, benefits and rights funded through the taxation or good will of a larger nation, all Aboriginal beneficiaries affirm that they belong to that nation, are citizens of that nation, and their former tribal sovereignty is voluntarily ceded for the sake of partaking in the sovereignty of that larger, multi-racial nation. Conversely, if tribal sovereignty was not ceded, then the relevant entitlements have been claimed through deception by foreign nationals, but this is evidently not what the proponents of First Nations have in mind.

Insofar as Aboriginal Australians are citizens of Australia, Section 9 of the Racial Discrimination Act 1975 applies:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Moreover, Section 10 stipulates:

If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

In this context, any law that prioritises the recognition of a particular culture, ethnicity, national origin or race, emphasising their special status including cultural and political rights, or limits the access to any public land by granting a title to a parcel of land on the basis of characteristics listed above, is unlawful and void.

On the other hand, since the rejected indigenous Voice was centred on the constitutional recognition of First Nations, it implied the recognition of a separate, racially homogenous nation that would be able to indirectly discriminate against people of other races or racial characteristics by designating them as “foreign” nationals. The Voice may therefore be characterised as a covert way of circumventing the prohibition against racial discrimination and exclusion from land under the guise of nationality.

It is sometimes objected that original ownership and special indigenous rights are necessary to atone for historical injustices committed against Aboriginal people, and thus facilitate racial reconciliation. According to Reconciliation Australia, the demand for reconciliation extends to all non-indigenous people. No distinction is made between non-indigenous entities that benefited the most from colonial exploitation and those settlers who were themselves exploited, or between entities that committed crimes and those who respected indigenous people as moral equals. And what do post-colonial immigrants, many of whom fled oppressive regimes, have to reconcile about with indigenous people? The expectation to reconcile devalues and arbitrarily stigmatises all immigrants and their descendants. The omissions suggest that the term “reconciliation” is a misnomer; the effect of the exercise is to secure an inalienable, superior moral status for the native race. This is inconsistent with the professed purpose of national unity and equality. “A reconciled Australia is one where our rights as First Australians are not just respected but championed in all the places that matter,” writes Kirstie Parker, a board member of Reconciliation Australia. Mutual respect for human rights and reciprocity of moral obligations are not enough to satisfy this version of “reconciliation”; a commitment to the priority of the native race and culture is demanded from every other race and culture. The stated criteria of reconciliation are capricious, arbitrarily discriminatory on the basis of race or origin, inconsiderate of differences between non-indigenous histories, and therefore morally unacceptable. Moreover, moral violations committed among people in the past are irrelevant to the moral obligations of people living today, do not negate the equality of rights, and do not justify racial supremacism or vilification.

The final argument in support of the Voice and related nativist policies is that these are intended to help Aboriginal people to remedy their relatively poor social and economic outcomes, but even this supposedly compassionate stance seems disingenuous. The government does not prioritise education of Aboriginal Australians to the same modern standard of competence as their own children but, instead, encourages an identity based on pre-modern customs and superstitions that impede autonomous economic advancement in the modern world. The ruling power gives the tribal man a fish but does not teach him how to fish; instead it tells him that he has no need to fish, because he is special and all the fish in the water are always already his.

There is something even more fishy about racial flattery of Aboriginal Australians. The fact that “white people” with a trace of Aboriginal ancestry can identify as Aboriginal and are instantly recognised as such, but “black people” with a trace of non-Aboriginal ancestry are never identified as “white”, suggests that nativism is only a cover for the conceptual erasure of the Aboriginal race, diluting it with “whiteness” to the point where indigeneity is transformed into a token of corporate privilege that is commensurate with the lack of integrity of those who choose to adopt it. This is not reconciliation but racial commodification.

We acknowledge the Original Owners of the Earth on which we are standing, the Human kind of which we are all representatives. We all share the same ancient ancestors. We are all related. Reason unites us.

Michael Kowalik, a philosopher and ethicist, writes at michaelkowalik.substack.com