Native Title & Equality
Philosophical opposition stems from ideas of individual rights, universal citizenship and democratic government, which are all elements of liberal theory. The opposition to native title from this perspective employs notions of equality to question why Indigenous peoples should have special rights that other Australian citizens cannot have. Differentiated citizenship based on collective rights is seen as divisive and unjustifiable. It is argued that where democratic government is in place and every person has the right to political participation, then that is sufficient to say that all the people enjoy self-determination.
These views belong to a strong theoretical tradition but the assumptions upon which they are based do not accommodate the unique status of Indigenous peoples in nation states. Liberal tradition assumes a homogeneous people and that we are all essentially the same with the same goals and the same understanding of the fundamental goods we require in life. But many states in the international community are, like Australia, made up of more than one people with different political, cultural and economic values.
Democratic government and individual rights do not necessarily mean that all people will enjoy human rights equally. This is a fundamental problem with majority rule and is brought into sharp relief in relation to the key indicators of human rights enjoyed by Indigenous peoples in Australia.
In political debate, the same language of equality and unity is employed but at a less sophisticated level. The idea that all citizens should be treated equally is used to deny Indigenous peoples the rights that emerge from their political status as first peoples and their distinct cultural identity. Moreover, it is used to deny Indigenous peoples access to remedial measures designed to overcome institutionalised and structural discrimination.
Equality is not achieved by treating every individual exactly the same. Such a conception of equality has no support in political theory or in law. Equality is generally understood as a much more complex notion. While every person should be treated equally, this requires that relevant differences are taken into account and irrelevant differences are not. When difference is taken into account where it is not relevant, then that is discrimination. But so too, if a difference is relevant and is not taken into account then that is also discriminatory. Equality imports an understanding of respect for differences.
Equality and respect should also extend to Indigenous peoples as peoples. Indigenous peoples are distinct political and social communities that may wish to exercise a level of autonomy and self-determination. But this should not be used as a tool for opposition by raising the spectre of division and separatism. It may be through providing a level of self-determination that feelings of national unity emerge, which rely upon inclusion rather than suppression. National unity is not real if it is forced through policies of assimilation.
Economic opposition is often used in political debate, just as political opposition to native title can often be disguised as economic opposition, particularly from industry interest groups. However, economic opposition to native title from industry is best understood from an individual self-interest perspective. There is a fear that Aboriginal land holding will reduce access to land and therefore increase the cost of resource development in Australia. It is likely that many industries will suffer in the short term as new relationships and processes are worked out. Some companies may find this period of transition very difficult. When taken as a whole, however, it must be accepted that the industries most affected by native title are those that have gained most, economically, from the denial of Indigenous peoples rights in the past. As a national economy, Australia will pay a price for past injustice and individual companies and industries must find new ways of doing business with Indigenous peoples.
In the face of vocal and continuing opposition to native title, there has been considerable public support for Indigenous peoples of Australia with emphasis on the protection of Indigenous rights to land. There has been political support for Indigenous peoples from particular political parties and considered support from academic commentators. At a popular level, community groups have been formed to disseminate information about native title and to promote the value of native title as a key element of the reconciliation process. Specifically, small initiatives have been undertaken by local councils, schools and universities, regional organisations and other community groups to support Indigenous rights to land. This popular action ebbs and flows in response to the political suppression of Indigenous rights by government and the intermittent attacks on Indigenous rights by some commentators or companies.
Keywords: human rights, 1992-
Author: Strelein, Lisa