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One of the most common responses during the recent referendum on the Voice was “If not now, when?” While it sounded like a statement of demand, it was also the wrong question, which should have been “If now, what?” According to the Australian Bureau of Statistics, about 900,000 Australians claim descent from the pre-1788 occupants of this land. It has been claimed by some Aboriginal academics that perhaps as many as 300,000 are fakes and/or Bruce Pascoe-style opportunists. So let’s say there are about 600,000 with some Aboriginal blood and perhaps (as the ABS does not publish these figures) a maximum of 100,000 full-blood Aborigines.
Much has changed in recent years. Back in the 1940s, government policies had reduced the population of “non-white people” after the booms created by the Gold Rush and establishment of our early industries. Few of the Islander, Chinese and Japanese remained after the White Australia Policy, which never included Aborigines. Most Aboriginal people lived away from the capital cities. So many Australians (about 7,000,000 in 1940) had never met a person of any colour but white except in a Chinese restaurant. That changed in 1942, when American troops began arriving in Australia and, by 1943, their number had risen to about 150,000, most located in Northern Australia but many also in Sydney and Melbourne. The violence and discrimination I and others witnessed in Sydney was between African-Americans and white Americans, while in Brisbane there was that plus white Americans against white Australians. Not having been aware of the discrimination in country towns, that introduction to racial animosities was quite the education for many.
But let us deal with the Australia of today, especially with the drivel dished up as Aboriginal “demands” during the Voice campaign, starting with the purported grass-roots requirement, as set out in the Uluru Statement from the Heart. Drafted by an urban-based committee that included many white people and Aborigines who do not live the traditional life, it demanded recognition of an alternate, parallel Australia whose composition and methods of selection were never disclosed. This would be followed by “treaty and truth telling” and, eventually and inevitably, compensation.
See also: Judicial Over-Reach in the Mabo Case
The only people living anything like a traditional life are the Aboriginal people in the out-stations. While urban Australians may be appalled by conditions and conduct, their Aboriginal ancestors would have given much to live like them. Imagine the greatest holiday ever to be had but conducted in a remote location, where you could do as you want all day and night. Now imagine that the fishing and hunting and berry-picking were just for fun, not for survival. Picture being paid to live like that, all the time supported by health services, including the Flying Doctor, and other elements of the social safety net underwritten by your fellow, far-away Australians.
As a alternative you could live in an outback settlement, where you might be provided with a house.You would have access to a proper supermarket, school, welfare and health offices, police etc. You would have a fortnightly cheque dropping into your account. On the restriction side, you may have part of your cheque quarantined from cash so you couldn’t gamble, buy grog and drugs, and so you wouldn’t be “humbugged” out of it by kin. You would have to share the settlement with a number of clans and tribes other than your own, so there might be feuds and violence.
But then, if you don’t mind living near white folks, you could squat in a town camp, where you have the amenities of a settlement and no restrictions on access to town facilities, and all these choices come without any requirement to work or endure restrictions on alcohol consumption. By the way, you exercise all these rights while also being a shareholder in a large unsubdivided and most likely undeveloped tract of restricted-access land held cost-free in collective ownership under Native Title.
As a final option, you might live and work as other Australian do.
How did all this — these lifestyle options, both good and bad — come to pass? Well, in 1768 James Cook landed on the shore of land he surmised to be the eastern coast of New Holland. To his knowledge nobody had previously claimed the land whose coast he followed north after making landfall, so he did so for England at Possession Island off the tip of Cape York three months later. This was permissible under the prevailing legal doctrines of Blackstone and Vattel.
After the American War of Independence international law began to change and land acquisition by “settlement” superceded discovery. So by the time Captain Phillip arrived in New South Wales on January18, 1788, and proclaimed the settlement on February 7 the law had switched to “land desart of civilized people” which in the eyes of Blackstone and Vattel meant “civilised” in that the land was cultivated. There being no evidence of cultivation the land was settled not stolen. The outcry arising from the 1992 decision in Mabo (No2) case that it overturned “Terra Nullius” is spurious. The term “Terra Nullius” originated in the 20th century so if you had to give a latin term the proper description might be closer to “Terra Barbaricus.”
What Governor Phillip brought to New South Wales was, according to Blackstone,
If an uninhabited country (and ‘uninhabited’ means uninhabited by civilized people) be discovered and planted by English subjects, all the laws then in being – which are the birth-right of every subject – are immediately there in force. But this must be understood with many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their situation and the conditions of the infant colony….
It may be ironic that the land laws applied to the world’s largest island were derived from those introduced into a much smaller island by the Norman invasion of 1066. The laws were designed to govern a feudal state comprised of good arable land, self-sufficient villages and ample water. In Australia, they were applied to a large hot land with a frail coating of top soil, unfamiliar flora and fauna, and very little fresh water.
It was little wonder that many of the concepts of land tenure initially imposed on the colony did not work as intended and were later modified. In fact, they evolved into the Torrens Title system of land tenure which, when introduced in South Australia in 1858, was the most sophisticated in the world.
What Torrens didn’t change was the rights in land and rights over land. One of the rights over land which would not have been extinguished arose from the usufructory use of the land by its prior occupants, This right to “the fruits of the land” was non-propriety, which would have created a “profit a prende” over any land granted — that is, a right to take from the land owned by another person part of the natural produce grown on that land or part of the soil, earth or rock comprising the land.
I am assuming that any well informed court, prior to the Mabo (no2) case, would have come to the above conclusion if the inhabitants claimed existing-use rights dating back to the “Dreaming” while acknowledging that they were but the guardians and protectors of land.
Had the High Court decided only the case it actually heard, that would still be the law today.
I welcome this article as I do all articles that help explain the current situation. I was incensed that the ABC last year had a program titled something like ‘Captain Cook Stole Australia’ and the program contents largely confirmed this theme. Reading articles like the above goes some way to suggesting that the idea of Australia being stolen is quite false. But I wouldn’t know how to discuss it with friends considering the situation depends on legal arguments not easily understood – unless they can be distilled into everyday language.
And what does the last sentence mean – I am not privy to the background. I’ve always heard of guardianship, however. That was the situation until … what happened?
I presume that the first humans to arrive in Australia were followed by others. That the whole 350,000 (or whatever number) here when Cook arrived did not come in one canoe or on one march.
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I wonder if the first groups to arrive were entitled to say to the following groups of arrivals that they (the first arrivals) were the original owners?
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It seems to me that if those first groups did not claim ownership that they then acquiesced to successive arrivals having equal rights. And so on and on until modern times.
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If I am correct, then modern day, so called First nations people who claim ownership are perpetuating a falsehood in an endeavour to impose apartheid for selfish gain.
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All the slogans they spout do not change that. That does not alter the fact that modern settlement might have been handled better.
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I believe in dealing with the here and now, not trying to rewrite history. I want an egalitarian society, not racism.
The CCP DeFacto is the UN: Quadrant should emphasis this.
@John Singer – you jut get better and better!!!
Thank you John for your insight, knowledge and wordsmith.
Age shall never weary you!!
Thanks again John.
This will be shared wherever is possible.
This law, that law is meaningless when the rule of ‘Might is Right’ has and will always apply to land occupation. The second Aboriginal group that fancied an already occupied piece of turf in ancient Australia would have taken it by force. As would’ve the third, fourth and so on. Should current Australia become the target of future invaders it will be ‘Might’ and not the courts that will decide on the outcome. Should we and our allies prevail we will retain ‘ownership’. That’s how ‘civilisation’ works. Civilised Zion is a current example.
Thanks for the novel perspective on outstation life, John — needs broader dissemination! But you’ve stumped me with: “in 1768 James Cook landed on the shore of land he surmised to be the eastern coast of New Holland”. I’d always assumed that Cook came ashore in Botany Bay on Sunday 29th April 1770. Who’s telling the truth here?
In Robert Hughes’ “The Fatal Shore”: On 21 August 1770, the Endeavour rounded Cape York…….Cook, Banks and Solander landed on a nubbin of rock now called Possession Island, hoisted a Union Jack and formally claimed the whole east coast of where they stood- down to 38 degrees S.,, near their original landfall- as “New South Wales’ in the name of George 111.
I understand that Hughes is not universally held in great esteem, but his scholarship can’t be so bad as to get that bit wrong.
Three flags displayed including Torres Strait – why?
Torrens Strait Islanders – 4,124
Murray Island is part of Torres Strait and is the whole basis for the Mabo Case. It has around 400+ people, yet their particular form of land holding was then extrapolated to the whole of aboriginal australia.
@sirtony
[their particular form of land holding was then extrapolated to the whole of aboriginal australia.]
Yes.
Thanks to Keating and O’Donoghue we have been taken for a corrupt ride from which there is no turning back 🙁
I agree with Margo O on the need to distil the legal arguments into everyday language, relating to this land tenure debate. When Governor Phillip introduced the UK legal system into Australia the concepts of land tenure were those derived from improvements made to the UK feudal system of land tenure over time and proved not always suited to a new country lacking the social relationships and a variety of residual feudal tenures still evident in the Metropolitan (such as “Copyhold”). Leasehold and Freehold were suited to the new country but many yearned for the social system component in UK like James Macarthur and William Wentworth and others who were labelled a “Bunyip Aristocracy” by Daniel Deniehy who practiced Law in Goulburn where he is publicly remembered to this day. For the type of tenures still retained in the Australian colonies the new colonies then had to devise a system of Crown Land registration and land transfer that differed from the traditional one in the UK because of the local social and political reality and Sir Robert Torrens in South Australia came up with the “Torrens Title” in a “Real Property Act” in 1858. This new efficient system of land registration and land transfer was adopted by the other Australian colonies and even in some other colonies of the British Empire.
Fast forward to the present where we now have two new tenures – Land Rights (not exactly a tenure?) and Native Title. Both are granted by Governments. I have had great difficulty trying to work out what they mean in real terms. Set out below are some extracts I gleaned from the Internet as well as extracts from the excellent book of Gary Johns – “The burden of Culture”. Another element in the mix is the classification of “Alloidal Title” in relation to Native Title, as set out in the extract immediately below. It seems there are conflicting views on what alloidal means and if Native Title is a “Government grant”. In recent times the media has reported that Aboriginal owned land (presumably alloidal Native Title) needs a new tenure to enable people to access funds for building houses etc. It was my understanding in the 90s that Native Title did not extinguish existing tenures for farming and grazing etc, but a group of Aborigines could make a cultural case for traditional links to the land then they would be able to access the land for fishing, hunting and so on, presumably with the landowner’s permission as many of us non-Aborigines did in our rabbit shooting days. But reading the material below indicates Native Title is much more complex than what we were told.
Land Rights is a grant of Crown Land under a standard tenure to an Aboriginal group collectively (and managed by a Land Council derived from community members) and therefore can be terminated by the Government just as it can do to the rest of us. Presumably the Government can use that land for its own purposes like building a military airfield, but can they do that under the alloidal nature of Native Title once it has been determined? When you read some of the quotes from Gary John’s book it looks like we are developing “Bantustans” a la Apartheid, hence this need for constantly stressing irreconcilable cultural apartness in the media and by Left Wing Governments. In addition to Land Rights and Native Title there is a third aspect to Aboriginal ownership which is identified by Gary Johns in the form of the Indigenous Land and Sea Corporation, a government funded body that purchases land under standard Crown Land tenures. Another point he makes is that hefty compensation payments are made to Native Title holders if native title rights are extinguished. That probably explains the recent attempts to claim Native Title for public spaces in municipalities with Sydney Harbour frontages.
I hope one day someone can explain all this in a Quadrant article to complement this excellent article by John Singer.
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Alloidal title constitutes ownership of real property (land, buildings and fixtures) that is independent of any superior landlord.
• Australians would not be able to take out mortgages on alloidal land.
• No law can govern over alloidal land
• Alloidal land is exempt from taxes (old – free of feudal services)
• The Crown would not be able to repossess land to build infrastructure.
• Title to land derives from a Crown grant as the Crown is the source of all tenure.
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According to the Attorney-General’s Department (2019) – “There are fundamental differences between land rights and native title. Land rights are created by the Australian, state or territory governments. Land rights usually consist of a grant of freehold or perpetual lease title to Indigenous Australians. By contrast, native title arises as a result of the recognition, under Australian common law, of pre-existing Indigenous rights and interests according to traditional laws and customs. Native title is not a grant or right created by governments.
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The difference between land rights and native title:
What is it?
Land rights is the return of certain Crown lands to Aboriginal people as compensation for dispossession and the resulting ongoing disadvantages suffered by Aboriginal peoples
Native title is the recognition of the pre-existing traditional and customary rights and interests Aboriginal peoples have in the land.
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Is traditional connection required?
Land rights – No – Traditional connection does not need to be established for a land claim to be successful.
Native title – Yes – Native title can only exist where Aboriginal people could prove to the Federal Court that they have maintained a continuing connection with an area via cultural practices, regular access and traditions.
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Who can make a claim?
Land rights – Aboriginal Land Councils constituted under the relevant legislation.
Native title – A native title group’s nominated representatives. This will usually be a group of people – not an individual.
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What land can successfully be claimed?
Land rights – Crown lands that are not lawfully being used or occupied (as town, pastoral or private land is), not (likely) to needed for residential or essential public purposes and not subject of a registered claim or determination.
Native title – Vacant Crown land, National Parks, State Forests, Crown Reserves, some types of non-exclusive leases, land covered by permissive occupancies, and licences (e.g. towns and farms) inland waters and the sea.
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Does it mean ownership?
Land rights – Yes – Aboriginal people generally receive full or freehold title to land. This allows them to receive full or freehold title to land. This allows them to control entry to this land with permits. Sometime land may be held in leasehold.
Native title – No – In most cases native title is recognised to co-exist alongside other rights and interests in the same area (non-exclusive possession). This can mean that Aboriginal people can legally access and use land for e.g. camping, hunting, fishing and other cultural activities. Only in some cases do they get rights akin to full ownership (exclusive possession). There is no right to control entry to this land.
Quotes from “The Burden of Culture” by Gary Johns.
P247. “… 80 per cent of the Australian landmass is covered by native title rights. These are user rights, not ownership. The Crown has a monopoly over the acquisition and extinction of native title rights, so native title holders cannot realise the value of their property rights by leasing, mortgaging or selling them.
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P251. “One of the Aboriginal claimants was reported to have remarked after a successful native title claim, ‘What was that all about, I can conduct my ceremonies, hunt, light fires? I could do all that beforehand”.
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P253. “The Indigenous Land and Sea Corporation (originally Indigenous Land Corporation) was established at the time of the native title regime in 1995 for those Aborigines who were unable to claim native title. The corporation spends the earnings from the original corpus of $1.6 billion paid for by the taxpayer, buying properties to be added to the ‘indigenous estate’ and on making those purchases financially viable, or for training or for cultural purposes.” ……… “ the corporation has acquired nearly six million hectares of land since 1995 and as at 2021, 278 properties have been purchased, most of which were granted to Aboriginal corporations.”
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P255. “Compensation for loss of native title rights is another area of income for Aboriginal landholders. De Rose v State of South Australia was the first decision to order the payment of compensation to native title holders for the extinguishment of native title interests. The amounts were decided by agreement. In 2019 Northern Territory v Griffiths became the first case from the High Court of Australia that articulated how to compute compensation for the extinguishment of native title rights under the Native Title Act (1993) (Cth)………………………….. The High Court calculated the value of cultural rights as 50 per cent of freehold value… “
100,000 “full-bloods”?
I would be surprised if there were more than 30,000 Aborigines alive today with no European ancestry at all.
Possibly fewer than 10,000.
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Intermarriage and interbreeding has been going since European contact, possibly from sealers and whalers before the First Fleet.
Australia , or the colonies that constituted it, was never an apartheid state, although it’s getting that way now.
I have a reliable source who suggests 7,000 in the north.
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Is traditional connection required?
Land rights – No – Traditional connection does not need to be established for a land claim to be successful.
Native title – Yes – Native title can only exist where Aboriginal people could prove to the Federal Court that they have maintained a continuing connection with an area via cultural practices, regular access and traditions.
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In my own experience it is no longer the case that physical continuing connection is required for Native Title to be granted. Now it is sufficient that the claimants just think about the country from time to time.
Thanks Helen for that clarifying comment. It only goes to show that the public deserves to know exactly what is going on with Native Title and Land Rights in simple terms, otherwise it has to be assumed that our country is being taken over by stealth.