An Australian Experience-Terra Nullius and Native Titles

Another hole in almost unblemished records of pioneering human rights and equality of Australia is the issue of Aborigines. The foundation of colonisation of lands of native peoples by the civilised world is terra nullius. That weired concept gave right for seizing land colonists found uninhabited, which were in fact inhabited by "primitive" communities or tribes. This is undoubtedly very convenient for adventurous European explorers, as whenever they saw peoples who did not dress or behave like them, they assumed the land of those groups of people was uninhabited and unused, at the very least unproductively. The essence of terra nullius is to establish a legal basis for any actions taken, seizure or possession. As there may not have been counterparts present for the European deals and treaty signing of early modern times, they rightfully assumed a non-existence of sovereignty and went ahead for justified land grabs.
Under these circumstances, terra nullius proved to be a powerful concept to convince colonising explorers, and later local inhabitants, that they were not exercising brutal conquering of peoples and civilisations, but undertaking rightful annexation and acquisition of land unoccupied and unused.
Back to Australia, even with today's population, large chunks of land of this continent are still uninhabited, and there might be a chance to apply terra nullius again. The difference now is that there is an authority to deal with. A troubling fact emerges that this authority over the whole of Australia was established by the people who gained their claim and identity through initially applying terra nullius to just a tiny part of the Australian continent when the first landing was made, with local Aboriginal tribes were in striking distance from landing sailors. The following continent wide exploration and extension of government authority derived from this small body of early administration. The question remains how this timidly originated colony could claim land over a vast continent. There must be pushes sanctioned by this European district authority and repeated uses of terra nullius in the following colonisation of two centuries. Each time terra nullius was applied, the significance of government sanction increased in proportion, and the concept itself became phony and more for disguise purposes.
The customary land rights of Aborigines overlap with pastoral or mining rights of European settlers. Which rights are to extinguish the other? This did not bother the government issuing property rights to settlers or companies, on the premises of terra nullius and crown grants. The ambiguity came to a head when the Mabo ruling highlighted the native title issue. The High Court of Australia in 1992 judged traditional use and continuous association with the land is with native Aborigines of Torres Strait. The Keating government, in response to this landmark ruling, passed the Native Title act through the Parliament. The other court ruling on the Wik case in 1996 allowed coexistence of leasehold grants and native titles. By this time, the ruling Coalition government took a different approach and amended the Act in 1998 to set record straight, that is pastoral leases have priority over native titles and cannot be taken over if a claim is made.
To a significant extent, these court rulings repudiate and overturn the concept of terra nullius, the very foundation of colonisation of Australia. It is a man made wonder that terra nullius shielded early explorers and colonists from bearing moral and legal pressure in ruthless land grabs for that long. As a result of this course of reversing verdict, some panic surfaced in certain quarters of the society in recent times, as people expected consequences of new title claims over existing land titles.
I wrote to Mr. Robert Tickner, the then Minister for Aboriginal Affairs, in 1993 about the land claim issue, making comparable references to Han Chinese settlements in Taiwan of two centuries. Existing Taiwan tribes had their land areas secured, while Han Chinese opened unexplored areas in Taiwan for farming and commercial purposes, under government supervision and scrutiny. It seems that Aboriginal communities in Australia should be able to get similar deals and gain certain security for their distinctive modes of life. Mr. Tickner in his reply stressed the official policy of reconciliation under Labour government, and his tone was indeed conciliatory. It is interesting to note that the terms used in his reply are indigenous Australians and non indigenous Australians, wider Australian community in his words. This is a step to recognising Aborigines' rights and narrowing the gap between the two, at least in terms of all being "Australians". Unfortunately, Labour lost office two years later, and the Wik case ruling heightened the tension and brought out certain urgency. The conservative Liberal government follows a trend in the society to portray Aborigines' disadvantages as real advantages in receiving extra government benefits, and inclines to relegate reconciliation to a low place in policy agendas, giving way to intolerance and impatience toward the native title issue.
In a similar vine to the twists of the "White Australia" policy, opinions and divisions on the Aborigines issue shift more unpredictably. Some quarters of the society take treatments of Aborigines as over generous. Even the open display of warmth towards outstanding Aborigines like Cathy Freeman during the Sydney Olympics petered out. Harsher remarks and tightening of handouts to Aborigines have gained currency in wider society under strengthening conservative influence.
In the short term, political parties may shirk their responsibilities in dealing with this matter head on, as they assess the costs of title claims being upheld and unhappy impression some sectors of the society may form toward them. In the long term, abandoning reconciliation and delays in formulating decisive policies and programmes incur dearer costs to Australia as a standard bearer of true democracy. It would be better to close this page at the earliest possible time and amend the records of a humanitarian society in Australia.

The Australia politics is thus stable and stimulating. Outsider observers may be not completely satisfied with the fact of a paucity of politicians turning into statesmen, of world stature and claim. The Australian type of parliamentary democracy maintains a high level of public participation and representation, bringing political figures close to the electorate and safeguarding the interests of lower social groups, as well as of higher ones. Amidst all these seemingly mundane and non-sensational affairs, the population is well cared for, with grievances and injustice mostly properly dealt with. The rise of conservatism in this country, as a mirror image of that in the US, presents a worry, but it is an understandable counter balance to the once overwhelming momentum of progressive changes in previous decades, initiated by rare charismatic Labour leaders of Hawke and Keating. This current reversing tendency cannot rule out future swings and reduced influence of the ultra right camp. Inevitably, moderates in politics always return and make radicals marginalised. Revisionism on multi-culturalism and Aborigines' rights will halt the undertakings for some considerable time ahead, but will not dismiss the tasks being carried out for long. Arch conservatism will grow out of fashion, another political correctness falling into ashes. It is the essence of an egalitarian society that counts in Australia.