Table of Contents
Native title is a concept in the law of Australia that recognises the continued ownership of land by local Indigenous Australians … it is also an example of two distinct systems of law operating within the same geographic, national and jurisdictional space … however, to the extent of any inconsistency between Australian law and customary Aboriginal law, non-indigenous rights will generally prevail (Wikipedia 2007).
The Wikipedia definition of native title seems straightforward; non-indigenous rights prevail and native title recognises Aboriginal ownership of land—or does it? What does native title mean to the urban Koori who is born, raised and educated on their customary lands now called Sydney? These same lands are now occupied by some 4.2 million people who are representative of settler society. The Sydney population also includes a large number of growing Indigenous groups who are not the descendants of traditional owners. Rather the majority of Indigenous Australians in the specific example of Sydney and its environs are themselves usurpers.
This is a paper on native title as it applies to Sydney: what native title is and what it isn’t, how it has been adopted by the black usurper and white coloniser and used as a process to deny Traditional Owners a voice in their rightful lands. The denial process is entwined within the legislation that is the Land Rights Act No. 42 1983 (NSW) (LRA).
In June 1983 the Wran Labor Government enacted the LRA, which subsequently allowed Aboriginal land councils to claim empty Crown land not needed for essential public purposes. This Act had its initiative in the early South Australian lands trust; in 1974 the New South Wales Coalition government had sponsored the establishment of a Lands Trust. The Trust’s main activity was the purchasing of residential properties. In time it became the landlord to around 20 per cent of the State’s Indigenous population. Much of this property later ended up as valuable assets for land councils and Aboriginal housing groups. The advent of the Wran Labor Government in 1976 was hailed as a necessary first step towards the granting of inalienable land rights to Indigenous people. After much delay and despite heated debate and opposition from some Indigenous groups, the parliament of New South Wales passed the LRA. It gave certain groups freehold title over current Aboriginal reserves but had no process for claiming former Aboriginal reserves. The only non-reserve land that could be claimed was Crown land that had no future use and was not being used. There was no recognition of traditional ownership (Bennett 1999: 104; Wilkie 1985).
Our traditional custodians were ill-prepared for what followed. Aboriginal Land Councils were established very quickly and began a land grab. This was often without any involvement or consent from local Aboriginal people who were direct descendants of the traditional people of the lands in question. Guringah people generally were still recovering from wearing the brunt of nearly 180 years of physical and psychological trauma (dating from the establishment of Sydney town adjacent to our lands in 1788 through to the 1967 referendum which removed discriminatory clauses from the Australian constitution). These traumas included firstly dispossession of our land, enforced segregation and discrimination, and then assimilation and the denial of our culture. Guringah people were not fully conversant with the new opportunities that the Act bestowed upon them, nor savvy enough about the workings of the new legal system. There was a lag in the granting of these opportunities and in local resolution as to how to respond to them. Another group of Indigenous people however stepped into the vacuum and took advantage of this significant historical event. We Guringah custodians could not believe other Aboriginal people could act against us to both deny our existence and then steal our traditional lands from under us. But they did and history will show that the medium to allow this was the LRA.
It is important to understand the overall ramifications of the 1983 Act for other Aboriginal people throughout New South Wales. The Wran government was not the benefactor to Aboriginal people by the enactment of the 1983 legislation with an offer of 6000 acres of land (a ‘fund’ together with the subsequent opportunity of claiming unwanted Crown lands) as some would suggest. Rather the Act was a smokescreen to cover what the government had realised in 1979, four years previously, when they and their legal advisors understood a legal ambiguity that had been created in 1913. For between 1913 and 1969 some 25 000 acres of ‘old reserves’ in New South Wales had been confiscated, at times forcibly with the use of police firearms (Goodall 1988: 37). Many of these old reserve properties were productive farm lands, developed and managed with pride by enterprising Aboriginal families. In 1979 the Wran Government’s legal people concluded that the Aboriginal Crown lands seized were in fact vested in the Protection and Welfare Boards until 1969, not the Lands Department as previously thought. Therefore in 1983 the freehold title over the old reserves was invalid and the Aboriginal people as the beneficiaries of the now defunct Directorate of Aboriginal Affairs could have had a successful claim on 25 000 acres of land that was arguably theirs. Many firmly believed that the reserved land was decreed or granted to them by Queen Victoria in recognition of their traditional ownership (Goodall 1996: 376-8).
The Wran government would only pass the 1983 Act on the condition that Aboriginal people would not oppose a new parallel law; the Retrospective Validation of Revocations Act which enforces a conscious theft of title to some 25 000 acres of Aboriginal land.
In 1988 the chairperson of the New South Wales Aboriginal Land Council defended their own actions in support of the introduction of the 1983 Act: ‘[L]ets face it—this is the only opportunity that we have had to implement self-management, self-determination and to give us the opportunity to establish an economic base; to give us the opportunity to be less of a burden to the taxpayers of this state.’[1]
Honorable rhetoric, the outcomes of which in the Sydney example are anything but self-management, self-determination and the opportunity to establish an economic base, as is illustrated by observations made by two political journalists discussed later in this paper (Jopson and Ryle 2004).
It seems that native title issues under (British) Australian law in New South Wales results in a continuous passage of pain and discrimination for Aboriginal people. The key discussion point of this paper concerns the perceived or actual financial benefit that usurping Aboriginal groups have made under the 1983 Act which has in many ways protracted local Indigenous impoverishment and marginalisation. It also highlights the process of native title and how the beneficiaries of the Act (that is the NSW Aboriginal land councils) become cultural auditors for the federal native title legislation.