The section of the website includes information about native title and the struggle for land rights. Please scroll down the page or click on the subheadings below to skip to a relevant section of the page.

Click below to take you straight to a particular section, or just scroll down:

• Introduction
• Invasion and Colonisation
• Treaty?
• Resettlement
• Activism
• Tent Embassy
• Mabo and Native Title
• Wik
• Resources Reviews

Introduction

No-one knows when Aboriginal and Torres Strait Islander (Indigenous) people first arrived in Australia. Evidence suggests it happened some 70 000 years ago, and perhaps much longer.

Land was and is central to Indigenous societies, cultures and religions. This land and its environment was managed, nurtured, protected and respected by Aboriginal people in a cyclical process of birth, death and renewal that is central to much of Aboriginal philosophy. For Aboriginal Australians the land is the core of all spirituality, identity and purpose. This relationship is central to all issues that are important to Aboriginal people today. Aboriginal people are part of this land and always will be.

The land rights story is the history of Australia, and in a sense, has been tied to the Reconciliation movement itself. When the British first colonised Australia they did not enter into a treaty with the local people, as they had done in other countries such as Canada and New Zealand. They claimed that Indigenous people did not have sovereignty that could be recognised, and that the land was owned by no-one. It was on this basis they took control of Australia from Indigenous Australians and formed government.

The foundation of all property rights in Australia is built on this shaky basis - this lie about the first Australian people and their land. Indigenous people have a long history of fighting for recognition and to reclaim the land that was taken from them. The fight continues today.

Invasion and Colonisation

When the First Fleet arrived in January 1788, Britain took formal possession of Australia. They encountered an unfamiliar land occupied by people they didn’t understand. The British took control of Australia without consent and without negotiating with the Indigenous people.

The British declared that the continent was ‘terra nullius’ – land belonging to no-one. Of course, this was not true. Indigenous people had a complex system for ownership and management of land belonging to different clans and nations.

By declaring the land to be ‘terra nullius’ the British were able to claim that they had ‘discovered’ the land. Under international law ‘terra nullius’ land could be taken over by anyone who would put it to productive use. The only other way for one nation to take rightful control over another nation is through agreement or through war.

While no official war was declared the arrival and settlement of the British in Australia was not peaceful. There were many conflicts as Indigenous people resisted being pushed off their lands. For more detail about the history of early Indigenous resistance see the History Issue page.

Treaty?

Once the land had been declared ‘terra nullius’ the British felt no need to negotiate with the local Indigenous people. In 1834 John Batman claimed to have made an agreement with the Aboriginal people for 200,000 hectares in the Port Philip District in exchange for money and various items. The Government disallowed the treaty however, on the grounds that the land was owned by the Crown, and Batman was only an individual so was not able to make a deal involving the Queen’s land.

Resettlement and dispossession

Once the pastoral (farming) industry developed, white settlement expanded fast. Large tracks of Crown land was leased to farmers to use. Some of these leases given to farmers by the British did not exclude Aboriginal rights, and some groups of Aboriginal people continued to live off the land. Aboriginal people were often prepared to share their country if the land was respected and they were allowed to share in some of the wealth that was produced. This led to cooperative relationships or mutual coexistence in some areas.

However, as more settlers arrived in Australia Aboriginal people were shunted further away from their traditional land onto unwanted land, or reserves. Sometimes the forced movements were peaceful, but often there were open conflicts. Much of Aboriginal resistance has been written out of Australian history, but has become better known in recent times. For more details see the Timeline and History Issue pages of this site.

Over the decades as different policies were developed to manage what was at the time considered the ‘Aboriginal problem’ restrictions were put on the Aboriginal people’s ability to move around on the reserves. Over time generations of Aboriginal people were born and lived on reserves in particular areas. When land rights legislation was finally enacting in the 20th century reserves were some of the areas handed back to Aboriginal people. Dispossession from land began on the east coast of Australia, which was settled first. It was not until the second half of the 19th century that Torres Strait Islanders also lost their independence when the Queensland Government annexed the islands. Torres Strait Islanders were not dispersed from their homelands like Aboriginal people.

Activism

By the 1900s many Aboriginal people were employed as stockman and workers on local farms. Over time Aboriginal workers began to increase their fight for pay and conditions. Often these demands included the right to access or manage the traditional lands on which the farms were built.

There were a number of worker strikes in the 1940s and 1950s which gained increasing attention. In 1966 the Gurindji people led by Vincent Lingiari held a strike against poor conditions and pay. What was originally a wage issue became a claim for the return of some of their traditional lands.

The Gurindji strike was one of the first to gain widespread support for Indigenous land rights. The Gurindji dispute was a significant turning point and a crucial symbol of the growing Aboriginal land rights struggle. Nine long years later the Gurindji claim was successful. In 1975 the land was handed back to the people by Prime Minister Gough Whitlam, and native title legislation was enacted.

For more information about the history of the early land rights struggle see the History page of this website.

More broadly from the late 1950s there was a new wave of Aboriginal protest. One of the key activist organisations formed was the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI). FCAATSI campaigned, and won, the return of several areas of land in the 1960s.

In 1963 the Yirrkala people of the Northern Territory sent a petition on bark in protest against the leasing of their land to a mining company. The government did not stop the lease but agreed that compensation should be paid for the loss of land.

Throughout the struggle for land rights, there have been many individual citizens and activist groups and organisations that have contributed. For example, Aboriginal activists such as Garry Foley and Kath Walker toured Australia speaking for the recognition of land rights, calling on the government to compensate $150 million for lost lands.

Tent Embassy

A crucial development in the Aboriginal Land Rights movement was the erection of a small tent on the lawns outside Parliament House on Australia Day 1972. It was an organised protest against the McMahon government’s refusal to recognise the Aboriginal demand for inalienable rights to land. Proclaiming the site as the “Aboriginal Embassy”, it symbolised Aboriginal people’s estrangement from land and gained a great deal of positive publicity. Despite the police forcibly removing the embassy and arresting a number of protesters, the Aboriginal embassy continued to reappear.

The Tent Embassy can also be viewed as a new level of Aboriginal activism and demonstrates the significance of land rights as a unifying and mobilising political cause.

Mabo and Native Title

The 1970s saw the first major legislation which recognised Aboriginal people’s right to land. The Northern Territory Land Rights Act set up a framework for Aboriginal people to back control of many parts of the territory.

Independent Indigenous land rights bodies such as the Northern Territory’s Northern and Central Land Councils and Western Australia’s Kimberley Land Council were established. Land rights legislation was also established in other states over the 1980s and 90s.

One of the most important win for the Indigenous land rights movement was the Mabo Case. Eddie Mabo was among the Meriam people who were the traditional inhabitants of Murray Island in the Torres Strait. In 1982, Mabo presented the High Court of Australia with a declaration of his region’s land rights. After a long court battle for recognition, the Mabo case was handed down in 1992.

This landmark case finally recognised that native title did exist in Australia and that Indigenous people still had the right to make claims over their traditional lands. Eddie Mabo had successfully proved that his people had a system of ownership and management of land which existed before the British arrived, and which still continues today. While the court did find that the process of settlement of Australia had extinguished native title in many areas, it also finally overturned the myth that Australia was ‘terra nullius’.

The Mabo case stimulated both increased awareness and support for Indigenous rights, and a backlash of fear as Australians began to consider what the case may mean. The government chose to respond by establishing a national Native Title Act. While many saw the Act as a positive move forward, as it established a way for Indigenous people to make land rights claims without going to court, the Act was very controversial and many amendments were made before conservative politicians would pass it into law.

Wik

In 1996, native title was tested further through the courts by the Wik people of Cape York and the Thayorre people of Queensland. The court held that native title rights could “co-exist” alongside rights of pastoralists on cattle and sheep stations. It also said that when pastoralists and Aboriginal rights were in conflict, the pastoralists’ rights would prevail, giving pastoralists certainty to continue with grazing and related activities, but not exclusive possession of the land. Graziers could continue to run their cattle or sheep and undertake all the activities related to doing this such as building fences, dams and other structures.

Despite that fact that pastoralists did not lose any rights as a result, the Wik decision led to a hysterical attack from pastoralists and conservative leaders, who demanded that native title be extinguished, or wiped out, on pastoral leases. Following their election, the Howard Government enacted a ’10 Point Plan’ by winding back many of the rights recognised in the Native Title Act.

The Human Rights and Equal Opportunity Commission’s Aboriginal and Torres Strait Islander Social Justice Commissioner, in his Native Title Report had this to say: “The Wik decision provided our country with a potential basis for co-existence between Indigenous and non-Indigenous Australians. The Federal Government’s Ten Point Plan destroyed that potential and produced the Native Title Amendment Bill 1997 (Cth) (’the Bill’). The Bill rejects a fundamental and dynamic proposition contained in Wik: that where pastoral rights are inconsistent with co-existing native title rights, they prevail over them but do not extinguish the underlying native title. The Bill represents a concentrated drive towards the permanent extinguishment of native title. Whichever way you look at these proposals it is impossible to find a just and fair framework which seeks to balance Australian property rights. You see bias. You see gross infringements of the human rights of Aboriginal and Torres Strait Islander peoples. You see “bucket-loads of extinguishment”.

The limits of the Native Title Act as it came to exist can be seen today in the small number of successful native title claims. Native Title claims can also take up to ten years to negotiate. Many of the successful claims come to be resolved through agreement between the government, land owners and traditional owners outside the Native Title Act framework. Addressing the limitations on this system and its overly legalistic nature remain a key part of the Reconciliation movement today.

Resource Reviews

NSW Aboriginal Land Council

www.alc.org.au/resources/fact%20sheets/History%20of%20land%20rights.pdf - This document offers a brief yet informative outline of the history of Land Rights in NSW.

The Spinney Press - Aboriginal Land Rights

http://www.spinneypress.com.au/169_book_desc.html - A recommendation for a book, but has some interesting facts and figures.

National Archives of Australia

http://foundingdocs.gov.au/item.asp?dID=57 - This website provides access to a scanned copy of the Aboriginal Land Rights (Northern Territory) Act 1976 and summary.

NSW Consolidated Acts

www.austlii.edu.au/au/legis/nsw/consol_act/alra1983201/

ANTaR

www.antarvictoria.org.au/land-rights.html

Frontier Online

www.abc.net.au/frontier - Frontier’ was an ABC documentary series about Australia’s 150 year land war between Indigenous and non-Indigenous Australians. Online educational materials and a CD-rom are available.

Common Myths about Land Rights

www.alc.org.au/resources/fact%20sheets/common%20myths%20about%20land%20rights.pdf - This document offers some of the more common myths surrounding Land Rights and the corresponding facts.

Aboriginal Art Online

www.aboriginalartonline.com/culture/land-rights.php - This Page explores the question “How do Native Title and Land Rights differ?

HREOC Native Title Report 1997

www.austlii.edu.au/au/special/rsjproject/rsjlibrary/hreoc/ntreport_1997/04

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