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Land Rights refers to the struggle for legal and moral recognition of the ownership of the land and waterways that were home to the Aboriginal and Torres Strait Islander peoples of this country prior to the colonisation that occurred from 1788.
European invasion and colonisation of this continent was the force that dispersed and dispossessed Aboriginal and Torres Strait Islander peoples from and of their land.
This meant that the ecosystems were not able to be maintained, ceremony was not able to be performed and participated in, sacred sites were left unprotected and the means for sustenance and survival were removed.
Aboriginal and Torres Strait Islander people do not perceive land in the title and property value sense but rather as a provider which in turn needs to be protected.
Historians have documented that animals were hunted conservatively, plants used sparingly to ensure they would regenerate and ceremony demonstrated respect for land and family.
Land is intrinsic to Aboriginal and Torres Strait Islander culture and identity and so the struggle for land rights is tied to survival.
Invasion or Settlement?
In 1768, Lieutenant James Cook was instructed,
You are….with the consent of the natives to take possession of convenient situations in the country in the name of the King of Great Britain, or, if your find the country uninhabited take possession for His Majesty…
In 1770, Cook attempted several landings all along the eastern coast of Australia and on multiple occasions, the landing parties were repelled. Cook wrote in his journal in 1770,
..from what I have seen in the Natives of New Holland, they may appear to some to be some of the most wretched people on Earth..
Although instructed to take possession ‘with the consent of the natives’ – what followed was conflict and dominance exerted over Aboriginal and Torres Strait Islander people.
The prevailing legal doctrine is that Australia was acquired through settlement despite the presence of an established social and legal system of Aboriginal and Torres Strait Islander peoples. The English common law at the time contained a definition of ‘uninhabited lands’ which considered lands uninhabited if they contained peoples ‘uncivilised’ by the 18th century English norms.
It followed then, that Cook took possession of the land pursuant to the doctrine of terra nullius and his subjective view of Aboriginal and Torres Strait Islander people detailed in his journals.
The illegality of the actions of the Crown was clear even as far back as 1832 where the Chief Protector of Aborigines at Port Philip, George Robinson wrote;
I am at a loss to conceive by what tenure we hold this country, for it does not appear to be that we either hold it by conquest or by right of purchase.
Terra Nullius was a deliberate social construct designed to enable settlement, parcel of land at a time, to enable expansion of colonial settlements and to do so without any compensation to the lawful owners.
Origins of the Movement
The modern land rights movement dates back to 1963 when, on 13 March, the Australian government took more than 300 square kilometres of land from the Yolngu people in Arnhem Land so mining company Gominco could extract bauxite.
As so often was the case, work started without talking to the Yolgnu people about their land.
The Yolgnu people from the settlement Yirrkala in north-east Arnhem Land presented the Australian Parliament with a bark petition, commonly known as the Yirrkala bark petitions, protesting to have their land and their rights returned.
Wave Hill Walk Off
In this same period, what is referred to as the Wave Hill Walk Off to protest working conditions and payment – soon became about much more. In August 1966 Vincent Lingiari, of the Gurindji people, led his people to strike but then argued that the land they were working on in perilous conditions was in fact the land of his people and, rightly so, he demanded the return of the land.
After years of struggle and lobbying, Lingiari was famously given back his land back by Prime Minister of Australia, Gough Whitlam in 1972. Following the failure of the Gove Lands Rights case, the Whitlam Labor Government instigated an inquiry into Aboriginal land rights (known as the Woodward Commission), which eventually led to the Fraser Liberal government passing the Aboriginal Land Rights (Northern Territory) Act 1972 which did have good intentions of returning land to the Indigenous people of the Territory and a large portion of the land has been returned.
On 8 February 1973 Gough Whitlam announced the Woodward Commission Inquiry into the appropriate way to recognise Aboriginal land rights in the Northern Territory and appointed Justice Edward Woodward as Land Rights Commissioner.
Justice Woodward was considered an apt appointment as he had argued his first land rights case in 1968 and was well versed in the struggle for land rights of Aboriginal people.
The Northern and Central Land Councils were formed in the same year to assist with the work of the Commission.
In the Aboriginal Land Rights Commission Report 1974, Justice Woodward recommended legislation to restore traditional land to the Aboriginal people of the Northern Territory. Justice Woodward’s report was the basis of the Aboriginal Land (NT) Bill, which was introduced into the Commonwealth Parliament in October 1975. However, with the dissolution of Parliament in November 1975, the Bill lapsed.
Following the change of Government, a further Bill was introduced into the Commonwealth Parliament in June 1976 — the Aboriginal Land Rights (NT) Bill 1976. It was passed in December 1976 and was proclaimed on January 26 1977.
In spite of the previous initiatives taken by state governments, the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) is the first real land rights settlement because of the rights associated with it and the amount of land transferred.
The Land Rights Commission Report also recommended;
- A creation of a land trust to hold title to Aboriginal land;
- A grant of inalienable freehold title to all Northern Territory Aboriginal reserves, the Hermannsburg and Santa Teresa mission areas, and several small portions of vacant Crown land near Darwin (about 19 per cent of the Northern Territory) to the Aboriginal people;
- Lands Councils to act as agents for Aboriginal people on land claims;
- Traditional owners to control mining and other activity on their land except where it is in national interest to explore or conduct mining;
- In the event that mining does occur on Aboriginal traditional land, royalties to be distributed as 30 per cent to communities within the areas affected by mining, 40 per cent to the Land Councils, and up to 30 per cent to be available for the benefit of Aboriginal people throughout the Territory.
The intent of the recommendations of Justice Woodward and the subsequent ALRA was to have a national model for national land rights to provide uniformity and equity, however, opposition from State Governments and the mining industry defeated that objective.