The nineteenth century roots of late twentieth century 'enlightenment'
The Ranger agreement and the Noonkanbah dispute showed the limitations of the land rights policies of the 1970s. That is, when the Commonwealth legislated land rights, it also reserved the right to qualify those rights in the case of certain mines and it bullied Aboriginal leaders such as Yunupingu with threats of amendments which would further qualify Indigenous rights. And when the Commonwealth purchased land for Aboriginal people, the new owners found themselves subject to State laws which compromised their rights.
Though 1967 referendum had conferred on the Commonwealth the right to override State laws and policies, no such action had ever been taken. The Western Australian Premier had pressured the Noonkanbah people with impunity and the Queensland Premier had got away with revoking the reserve status of some Aboriginal land. When the Hawke Government looked as though it would use the Commonwealth's constitutional powers to generalise to all Indigenous Australians the land rights enjoyed in the Northern Territory, the forces fearful of land rights - as a policy and as an electoral issue - prevailed.
This sudden loss of momentum in land rights reforms surprised and shocked many of the supporters of land rights who thought that the Whitlam Government had brought Australians to the beginning of a new post-colonial era. The disappointment of these expectations challenges our historical understanding, and makes it necessary to trace the breakthroughs of the 1970s back to their sources in the Australia's colonial history.
It is possible that the 1970s was not the start of a new phase of Australian colonial history but the conclusion of an old one. In its 1970s and 1980s versions 'land rights' was a residual policy - that is, most of the land that was transferred to Aboriginal hands had not already been alienated to the colonists: reserves which had not yet been revoked, and areas of vacant Crown land which had not yet been alienated to others' ownership. In the Northern Territory, it had once been necessary to get a permit from the Administration to enter a reserve; under the Land Rights Act, land councils administered the permit system. There was continuity, as well as difference, in such arrangements.
Though much of the rhetoric of land rights pointed to a rupture with old assumptions - title was being conferred as a matter of Indigenous right - the legal basis of these transfers was similar to the legal understanding upon which reserves had been created since the nineteenth century. That is, a grant of land by the Crown in the 1970s and 1980s was a benevolent act by a sovereign colonist, just as reserves had been created by the Crown's benevolent actions in years gone by. The conditions of the 1970s and 1980s grants were set by the Crown, just as they had always been, and those conditions were subject to changes in political will, just as they had always been. In 1978, the Ranger negotiators were left in no doubt about that continuing political reality.
In the nineteenth century the Colonies had struggled successfully with Britain for the power to determine their own land policies. With federation, in 1901, the Colonies (now called States) retained the right to determine land use, and they retained, as well, the complementary prerogative to decide, without Commonwealth interference, what to do with the land's original owners. Since 1967, though, the States have had to live with the constitutional possibility that the Commonwealth would determine their policies towards Aboriginal and Torres Strait Island people, the Commonwealth has lived by the unwritten political rule that conforms to the older federal pact. That is, when a State makes policy affecting land and Indigenous Australians, it should be left alone to do so. The Labor party made plain in March 1986 its respect for that abiding convention of Australian federalism.
To stress the continuities in Australian policies towards issues of land and Indigenous well-being is not to deny that there were genuine reforms in land laws affecting Indigenous Australians - from Dunstan's in 1966 to Goss's in 1991. However, it helps to put these reforms in perspective if we acknowledge how much they were made possible by decisions made in the nineteenth century, the century of dispossession. The nineteenth century policy tradition which saw value in setting up reserves created an important legacy for the 1970s and 1980s. In that nineteenth century legacy, ideas of compensation played a dwindling and increasingly muted role, as notions of 'improvement' and charity became more popular. With these newer rationales for 'reserves', the Indigenous estate became vulnerable, in the twentieth century, to colonial authorities who thought that reserves were holding back Aboriginal people and who thought that the reserves were best revoked. As a consequence, Indigenous Australians in Tasmania, Victoria and New South Wales found that there was very little of their land base left when political opinion at last came round to the view that reserves were Indigenous property. Fortunately there was much more of the reserve legacy in the more recently settled parts of the continent, particularly in the Northern Territory, South Australia, Queensland and Western Australia.
It is in this sense that we can say that the humanitarian strand within Australia's colonial history has now borne fruit in the desert and savanna regions of the north and centre. The land rights policies of the 1970s and 1980s were the climax of this older humanitarian tradition. Some Aboriginal people got title, but most got none. Among those fortunate enough to have their own land back, some enjoyed stronger title than others, depending on which State they lived in. Having produced this uneven result, the momentum of land rights reform stalled under a Labor government intimidated by the States.
The potentials of the nineteenth century were thus exhausted by a legislative flurry in the final quarter of the twentieth. At that moment, the rhetoric of social justice jostled for ideological dominance with the clamorous reminders of 'State rights'. On both sides of Australian politics, there was a feeling that 'land rights' had gone about as far as it could go. And many thought 'too far'.
In this complacent and fearful atmosphere, the 1992 Mabo judgment was a bombshell.
Though 1967 referendum had conferred on the Commonwealth the right to override State laws and policies, no such action had ever been taken. The Western Australian Premier had pressured the Noonkanbah people with impunity and the Queensland Premier had got away with revoking the reserve status of some Aboriginal land. When the Hawke Government looked as though it would use the Commonwealth's constitutional powers to generalise to all Indigenous Australians the land rights enjoyed in the Northern Territory, the forces fearful of land rights - as a policy and as an electoral issue - prevailed.
This sudden loss of momentum in land rights reforms surprised and shocked many of the supporters of land rights who thought that the Whitlam Government had brought Australians to the beginning of a new post-colonial era. The disappointment of these expectations challenges our historical understanding, and makes it necessary to trace the breakthroughs of the 1970s back to their sources in the Australia's colonial history.
It is possible that the 1970s was not the start of a new phase of Australian colonial history but the conclusion of an old one. In its 1970s and 1980s versions 'land rights' was a residual policy - that is, most of the land that was transferred to Aboriginal hands had not already been alienated to the colonists: reserves which had not yet been revoked, and areas of vacant Crown land which had not yet been alienated to others' ownership. In the Northern Territory, it had once been necessary to get a permit from the Administration to enter a reserve; under the Land Rights Act, land councils administered the permit system. There was continuity, as well as difference, in such arrangements.
Though much of the rhetoric of land rights pointed to a rupture with old assumptions - title was being conferred as a matter of Indigenous right - the legal basis of these transfers was similar to the legal understanding upon which reserves had been created since the nineteenth century. That is, a grant of land by the Crown in the 1970s and 1980s was a benevolent act by a sovereign colonist, just as reserves had been created by the Crown's benevolent actions in years gone by. The conditions of the 1970s and 1980s grants were set by the Crown, just as they had always been, and those conditions were subject to changes in political will, just as they had always been. In 1978, the Ranger negotiators were left in no doubt about that continuing political reality.
In the nineteenth century the Colonies had struggled successfully with Britain for the power to determine their own land policies. With federation, in 1901, the Colonies (now called States) retained the right to determine land use, and they retained, as well, the complementary prerogative to decide, without Commonwealth interference, what to do with the land's original owners. Since 1967, though, the States have had to live with the constitutional possibility that the Commonwealth would determine their policies towards Aboriginal and Torres Strait Island people, the Commonwealth has lived by the unwritten political rule that conforms to the older federal pact. That is, when a State makes policy affecting land and Indigenous Australians, it should be left alone to do so. The Labor party made plain in March 1986 its respect for that abiding convention of Australian federalism.
To stress the continuities in Australian policies towards issues of land and Indigenous well-being is not to deny that there were genuine reforms in land laws affecting Indigenous Australians - from Dunstan's in 1966 to Goss's in 1991. However, it helps to put these reforms in perspective if we acknowledge how much they were made possible by decisions made in the nineteenth century, the century of dispossession. The nineteenth century policy tradition which saw value in setting up reserves created an important legacy for the 1970s and 1980s. In that nineteenth century legacy, ideas of compensation played a dwindling and increasingly muted role, as notions of 'improvement' and charity became more popular. With these newer rationales for 'reserves', the Indigenous estate became vulnerable, in the twentieth century, to colonial authorities who thought that reserves were holding back Aboriginal people and who thought that the reserves were best revoked. As a consequence, Indigenous Australians in Tasmania, Victoria and New South Wales found that there was very little of their land base left when political opinion at last came round to the view that reserves were Indigenous property. Fortunately there was much more of the reserve legacy in the more recently settled parts of the continent, particularly in the Northern Territory, South Australia, Queensland and Western Australia.
It is in this sense that we can say that the humanitarian strand within Australia's colonial history has now borne fruit in the desert and savanna regions of the north and centre. The land rights policies of the 1970s and 1980s were the climax of this older humanitarian tradition. Some Aboriginal people got title, but most got none. Among those fortunate enough to have their own land back, some enjoyed stronger title than others, depending on which State they lived in. Having produced this uneven result, the momentum of land rights reform stalled under a Labor government intimidated by the States.
The potentials of the nineteenth century were thus exhausted by a legislative flurry in the final quarter of the twentieth. At that moment, the rhetoric of social justice jostled for ideological dominance with the clamorous reminders of 'State rights'. On both sides of Australian politics, there was a feeling that 'land rights' had gone about as far as it could go. And many thought 'too far'.
In this complacent and fearful atmosphere, the 1992 Mabo judgment was a bombshell.
Keywords: 1967 referendum, activism, anthropology, Australian Labor Party, Dunstan, Don, Hawke, Bob, humanitarians, land rights, Mabo judgement, New South Wales, Noonkanbah, Northern Territory, Queensland, Ranger Uranium Mine, Tasmania, Victoria, Western Australia, Whitlam, Gough, Yunupingu, Galarrwuy
Author: Rowse, Tim and Graham, Trevor