The Multinational Monitor


G U E S T   E D I T O R I A L

Indigenous Rights

by Frank Brennan

The [Australian] government believes it is essential, as we come to the bicentennial year, to recognize that 200 years of European settlement come after 40,000 years of Aboriginal history. The Government will explore how best to reflect that recognition and the obligation which this involves for the whole community." So spoke Ninnian Stevens, Governor General of Australia on September 14, 1987 at the opening of the 35th Parliament. Three months before, the Hawke Labor government had advised him to give his assent to legislation which stipulated that "the federal government does not acknowledge" the occupation of the land "by Aboriginal people before the arrival of Europeans,... the importance to the Aboriginal people and to the wider community of the Aboriginal culture and heritage" or "the need to accord appropriate status to Aboriginal elders and communities in their role of protecting the continuity of the culture and heritage of the Aboriginal people."

Despite the land rights advances made in most jurisdictions in recent years, there is still a need for legislation and government action to grant secure tenure to Aboriginals who remain dispossessed, especially those living on pastoral leases and on the fringes of country towns. The right of Aboriginals to self-determination on their traditional lands should not vary across state boundaries, but should be legally recognized and protected from arbitrary or unjustified interference.

There is a need for a National Aboriginal Lands Acquisition Board, which would hear Aboriginal land claims on the basis of traditional ownership, historical association or need. It would recommend to the Federal Minister for aboriginal affairs, acquisition of land from states when needed, the establishment of Aboriginal reserves and purchase of vacant Crown lands. In recommending land grants, the Board would suggest the form of title, including consideration of powers to mortgage, sell, transfer and lease land. It would also certify which parts of the Aboriginal land should be categorized as living areas, sacred sites, recreation grounds, burial places and places of worship and create reasonable buffer zones around these areas. Such areas could be mined only with the consent of the Aboriginal owners. Other areas would be subject to the ordinary mining laws of the state in question.

States like New South Wales which have set up their own claims procedures should be allowed to make claims for financial assistance from the Acquisition Board. The Board could operate more economically and extensively if there were an amendment to the Constitution as recommended by the Constitutional Commission's Advisory Committee on Individual and Democratic Rights Under the Constitution and the Advisory Committee on the Distribution of Powers. This amendment would "ensure that the Commonwealth is not required by the Constitution to compensate state governments in respect of the acquisition of Crown land for Aboriginal purposes, where the land has at any time since Federation been designated as land reserved for Aboriginals under the laws of any state."

The federal government could require mining companies to have a certificate from the Minister for Aboriginal Affairs before com mencing mining operations on Aboriginal land. In the absence of such a certificate, the federal government could refuse export per mits for any minerals extracted from the Aboriginal land or by a particular company.

Parliament needs to pass legislation to preclude the possibility of expropriation of Aboriginal land by executive action of the federal government without Parliament's approval. Further, it should legislate to buttress state Aboriginal land titles, providing that any confiscation of Aboriginal land at the state level without the approval of the relevant state parliament would be invalid. The land in question would automatically be vested in a trust, with provision made for just compensation by the state.

Ensuring equal protection for all under the law, rectifying the injustices of the past and preparing for improved relations between Aboriginals and other Australians requires symbolic action in 1988 and legislative and social change which will carry the nation peacefully towards our first centenary of nationhood on January 1, 2001. 0

Frank Brennan is a Jesuit priest, author and a lawyer. He is also the Advisor to the Australian Catholic Bishops Conference on Aboriginal Affairs and legal advisor to the Queensland Aboriginal Co-ordinating Council.

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