Illiberal Myths about Native Title and Indigenous Rights

Comment by Steve Mickler


The Federal government is trying to justify its Wik legislation on two broad grounds.

One is pragmatic - the Native Title Act is, the government maintains, unworkable and creating uncertainty for the pastoral and mining industries.

With any extension of rights to previously deprived people comes a number of practical, legal and administrative problems.

However, the government's solution in its Native Title Amendment Bill is to extinguish native title on pastoral land and strip away indigenous rights to negotiate, rather than to make negotiation the central means of resolution.

The second ground is 'ethical' - the Act, and the High Court's Wik decision finding Native Title survives on pastoral leases, also, the government would have us believe, unfairly advantages one group of people at the expense of other Australians.

This last argument claims for itself the spirit of liberal and democratic principles of fairness, equity and due process.

Yet underlying it are, I think, decidedly illiberal and undemocratic ideas and purposes.

The government's strategy clings to a number of superannuated myths and conceptual blockages regarding the political status and rights of indigenous peoples in contemporary Australia.

These are:

The myth of racial privilege. The idea that the indigenous common law rights and entitlements in the land amount to "special privileges on the basis of race".

Many people struggle over this idea, and are perhaps confused. They are not helped by a government that cynically exploits it.

The High Court's decision on Mabo effectively struck out the foundational legal doctrine of the British colonisation of Australia.

Terra nullius - meaning land belonging to no-one - was fundamentally wrong and unjust in holding that the continent was not already occupied by free and self-governing societies of people. While crucially opening up the terrain for the wider legal recognition of indigenous sovereign rights, the Mabo decision and the Native Title Act giving effect to it are limited to enabling people to re-claim traditional lands under common law, without invalidating other forms of title.

Mabo established a form of title by which indigenous people's land can be recognised as inheritable property.

It should be accepted as a matter of course that the only citizens on the continent that can possibly have these entitlements are indigenous.

That they are of a different race is entirely coincidental to the ethical and legal principles that apply.

If they happened to be "white" instead of "black" these would be unchanged because they apply to people who have a distinct property right and a distinct tradition of law in which that right is rooted.

Government discrimination against indigenous title-holders consists in its refusal to apply these straightforward liberal principles of equality and due process to entitlements that can only be enjoyed by them for reasons of history and place, not privilege and race.

The above principles hold true in relation to the question of broader collective indigenous rights - yet to be determined - that would flow from a constitutional recognition of their sovereign character.

They are not race-based privileges either, but entitlements accruing to distinct peoples with pre-existing territorial occupation.

Think of the parallels - rather than the differences - with the cases of the Scottish and the Welsh in relation to England, where all parties are "white".

The myth of exceptional status. The idea that indigenous rights are an undemocratic bid for exceptional political status.

The presumption here is that indigenous people have an 'ordinary status' at the moment. But do they?

Certainly, since the 1960s, they are citizens. However, as political theorist Paul Patton recently put it in an article in The Australian, they are also "the descendants of previously free and self-governing peoples who were colonised and dispossessed without their consent".

This puts indigenous people, as Patton says, in "a unique political and moral position" compared with other Australian citizens.

Moreover, I think it means they already have a kind of exceptional status.

Because how can descendants of previously free and self-governing peoples whose sovereign rights and entitlements are denied not be exceptional?

In Patton's view, we need to approach indigenous rights by first asking "what principles would have been accepted if the colonial relationship had been entered into freely on the basis of negotiation and consent". The answer can only be principles of equality and mutual respect.

The myth of extremism. The idea that indigenous political demands are radical and extreme, that they represent a turning away from modern democratic principles and values, and for some even a turning away from the contemporary world.

But let's consider what the indigenous leadership is currently calling for and the principles and values they reflect.

  • Acceptance of the inherent right of self-determination - liberty.

  • Title to traditional lands and a fair share of the country's economic wealth - equality.

  • Coexistence in a respectful and constructive partnership on the continent - fraternity.

What better terms on which to work for reconciliation and what better principles to guide us?

Well may the present indigenous leadership be said to be moderate because rights to land and to self-determination are simply not radical or exceptional. They are rights that we should ordinarily expect to be held by peoples of distinct culture grounded in immemorial occupation.

Further, there is a myth that indigenous sovereignty is an extremist and partisan political idea.

Yet the concept of sovereignty does not belong to this or that particular political creed or ideology, whether extreme or moderate. It is universal and mundane.

What, for instance, is the rationale underlying Australia's current grappling with the idea of breaking constitutional ties with Britain and establishing an independent republic?

It is that Australia's continued constitutional subordination to another nation is understood to be exceptional and extraordinary to the common conception of a free and self-determining people.

That is, completed sovereignty is seen as necessary to remove this extraordinary state of affairs. The apparently radical move is not actually aimed at creating a radical future, but an ordinary one.

We should apply the same thinking to the recognition of distinct Aboriginal sovereign rights and the entitlements that follow.

It means the right for indigenous people to be ordinary. Ordinary here does not mean culturally the same, it means the ordinary right to be culturally distinct and self-determining.

Equally it means the ordinary right to live comfortably as citizens within and to have many things in common with the wider Australian cultural and social system - but without the relentless pressure to compromise or relinquish distinct rights and identity.

The myth of separatism. The idea that distinct indigenous rights and entitlements are separatist, and that they point inevitably to the development of a separate Aboriginal state.

But this is not what the majority of the indigenous leadership and the broad indigenous movement are calling for.

Rather they are advocating the means by which peoples can successfully coexist and cooperate under the existing Australian state structure.

All governments should recognise and welcome this to be an offer to negotiate, as equal peoples, the terms under which the continent can be shared.

Instead the Federal government is prepared for a double-disolution of parliament and to run a populist election campaign which would be based on the myth of Aboriginal privilege. This is deplorable.

However it chances of electoral success are by no means certain and the growing broad-based campaign to defend indigenous people's rights is rightly not moderate in intensity.

This campaign could have a surprisingly effective populist appeal of its own because the government Bill will allow state governments to upgrade pastoral leases to exclusive tenure. This will advance the privileges and wealth of an elite minority of pastoral leaseholders at the expense of indigenous interests and ultimately, the ability of ordinary Australians to work towards a better future of coexistence and mutual respect.

Moreover it is clear that despite the ravages of over a decade of globalisation and the economic rationalism associated with it upon the living standards and security of ordinary Australians, and despite the vigorous efforts in some political and media quarters to scapegoat marginalised groups for this, the revolution in public thinking begun with Mabo is irreversible.

Its influence is seen at all levels but particularly on younger generations as they advance into positions of social authority.

For young political culture, indigenous rights are elementary to what it means to be a modern democratic community.

If the mandate for outdated mentalities was a seductive illusion for the government twenty months ago, seeking a renewal of it over Native Title now could just as easily result in a national rebuke.


A shorter version of this article appeared in The West Australian newspaper as 'Liberal Party by name, illiberal on native title', 25 November 1997, pages 16-17.  Back To The Top


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