Landmark Native Title Agreement an Eye-opener
Does Australia really have anything to fear from successful native title claims?
Last week the Federal Court ratified a negotiated native title agreement over nearly 55,000 square kilometres of the Great Victoria Desert in Western Australia, which makes the Spinifex people the recognised owners, with rights similar to those of freeholders.
This was the second major agreement in that state in three months. In August, Aborigines settled the Nganawongka claim with the state government, pastoralists and miners, gaining native title over nearly 48,000 square kilometres of mainly pastoral country south of the Pilbara.
Unlike the more traditionally oriented Spinifex people, the Nganawongka claimants did not get exclusive rights to their land. But they gained access to pastoral leases to hunt, fish and gather resources for non-commercial purposes, and to visit and protect places of cultural significance. They will also receive compensation for any mining that takes place on their country.
Between them, the Spinifex and Nganawongka agreements cover an area almost half the size of Victoria. But all the different parties involved seem pleased with the outcomes. And when the Nganawongka settlement was announced, National Native Title Tribunal President Graeme Neate hailed it as a 'landmark agreement for resolving native title issues in Australia'.
I spent over twelve months working on the Nganawongka claim as an anthropologist for the WA Crown Law Department, attending court hearings and preparing reports on the evidence. Most hearings took place on pastoral stations in the claim area, hundreds of kilometres from the nearest towns, and as a consequence there were no journalists present to write about the proceedings.
This was unfortunate, because in certain ways the case was a real eye-opener, confounding expectations on either side of the native title debate.
Despite what people unsympathetic to indigenous concerns might suppose, the claimants were very co-operative and responsible, nothing like the economic wreckers that Aborigines are sometimes feared to be. But at the same time, a number of things they said would upset those who see themselves as the defenders of Aboriginal interests, righting the wrongs of the past.
The claimants are actually members of three separate language groups, the Nganawongka, the Wadjari and the Ngarlawangka. The traditional relations between these groups are unclear, but they had come together in European times, working on the pastoral stations that took over much of their original country.
Over the years, many of the Aborigines drifted away to coastal towns and other places outside the claim area, but a small core had always remained. In the early 1990s, these people established a community on their country called Yulga Jinna, and the Indigenous Land Corporation recently purchased a nearby pastoral station for this group.
And at least over the past half-century, the relations between these Aborigines and the pastoralists in the claim area have been much more complex than city-dwellers are led to believe.
The now-deceased Aboriginal father and mother of one of the claimants had themselves been holders of a pastoral lease, and were part of a social milieu which included both their white neighbours and their Aboriginal relatives---a number of whom were also claimants. The father of another claimant had been brought up as a member of the family by the grandfather of one of the present-day pastoralists, and encouraged to become a traditional Law man as well as learning European ways.
Indeed, it was the obvious personal goodwill between the older members of the claimant group and a number of the contemporary pastoralists that led Justice Madgwick, who was hearing the case, to urge the parties to mediate the claim instead of continuing with court action. Asked about the difference between her people's sentiments for their country and the sentiments that whites might have towards their stations, Linda Riley, the most senior female claimant, said she thought that at least some pastoralists would have similar feelings to hers.
To the apparent surprise of Justice Madgwick and her own legal team, Ms Riley also said that she did not mind if pastoralists sold their leases to other whites. The claimants just wanted to ensure that the leases would never be sold to other Aborigines. In other words, they were hoping to contravene the Commonwealth Racial Discrimination Act.
Unfortunately however, some of the Nganawongka seem to have fallen prey to the fantasies about Aboriginal culture beloved by the cafÃ© latte set. During a visit to a scenic spot called Bluebush Swamp, Justice Madgwick asked the claimant who claimed responsibility for the locality to explain what was special about his relationship to this place compared to how a white stockman might respond to it.
The claimant, who had been through mainstream Australian education but not an Aboriginal initiation, answered that while he would want to preserve the peace and beauty of the spot, the white stockman would destroy what he saw. It was an answer that might gain him accolades from the greens, yet it ignored the fact that the beauty of Bluebush Swamp remained unaffected even after being part of a pastoral property for 75 years.
But perhaps the most interesting aspect of the Nganawongka settlement is the distress it has caused to some of the activists in the native title industry. At a recent workshop in Perth, lawyers and others associated with Aboriginal Land Councils claimed that the Nganawongka had given away too much.
As one leftist lawyer candidly put it, 'the Nganawongka' decision is exactly the kind of result that the colonizing power has intended the native title process to achieve'. Admitting that the Aboriginal claimants themselves 'appear happy with the result', he suggested that this demonstrated their self-deception. Who said white paternalism is dead?