Aboriginal title is not Native Title: real reform is practicing sovereignty

Kado Muir Aboriginal Activist

Kado Muir Aboriginal Activist

This month we celebrate twenty years since the Mabo decision overturned the legal fiction of terra nullius. This was a watershed decision for Australia an outpost of the British empire founded on an argument that the land was not inhabited, in legal terms a desert. Few Australians realise the real significance of the Mabo decision and fewer still understand its true nature. The Mabo decision was not granting land rights and it was not what we know today as native title. Why? Let me try to explain, but first to set the scene:

The British falsely claimed that the land in Australia was uninhabited, to understand terra nullius try this anology ...

you find a house with the front rooms empty, you move in only to find that the inhabitants were in the back yard. You stay. You find the original owners walking across to use the bathroom, you beat them up and tell them it belongs to you and you force them back to the backyard, if you want to go to the bathroom then use the garden. This goes on for quite some time, you gradually move out into the back yard, you realise there are a lot of people there and you can't sustain your argument that the house is empty.

Others along the street are watching, so you change the rules, you say yeah there were some people in the backyard, but look at them, look how filthy they live, they can't even keep themselves clean, they are sick and dying, in truth your pets live better than them, they can not possibly own this house - in truth they are too low in the scale of social evolution. You kick them and beat them up again and anyone who resists you call the police to remove, they are after all trespassers living on land you own.

This goes on for quite some time, you let one or two in to clean your house and look after your pets. After awhile you give them some rights (Land Rights) to live in the garden shed, but the others you keep firmly locked in the garden. This goes on for a few years and some of these guys learn that this has happened all along the street, yet in some houses the parties have made agreements to share sections of the property and chattels and on others it just got too uncomfortable so your colleagues moved out and went back to your home town. Ah the "garden people", those who don't really exist, find out that your mob actually have laws governing the way you can move into a house.

These laws say you can move in if it is empty, if you declared a war and won it through a fight or you made an agreement to live together. The "garden people" think hang on that never happened here, we are just ignored and told we don't exist and any time we ask questions we are beaten up, what can we do?

And that is what Mabo did, challenged this illegal occupation using the laws of the occupiers.

Now on to the real importance of the Mabo decision, what it does and what is never appreciated today in real terms is that it says there are a system of laws, traditions and customs that do not come from the British Crown or the British Common Law, a sui generis system, in my understanding AKA Soveriegnty. And that these laws, traditions and customs give the Aboriginal and Torres Strait Islander peoples an interest in the land.

That interest does not come from the Crown and wait for it ... the Common Law has a mechanism that can recognise this interest, but only in land, it can also stop recognising that interest any time it chooses, unless there is something like a Racial Discrimination Act stopping it from denying that recognition. That mechanism in Australia is today called Native Title.

Native title then is the Common Law recognising that Aboriginal and Torres Strait Islander Peoples have a system of laws giving them rights to land. it is not the Government, the Crown or anyone else GIVING anything to Aboriginal and Torres Strait Islander Peoples, it is acknowledging what we already have!

Unfortunately this is where we all fall down, everyone is too caught up with Government, the Nation State and the Legal system GIVING us recognition. The entire Native Title Act is designed and built on the presumtion that we the Aboriginal peoples must come cap in hand begging for recognition and acknowledgement. The recent mooted changes to the Native Title Act reinforce this slanted view.

We as Aboriginal and Torres Strait Islander peoples are forgetting two important things, one; Mr Mabo did not accept the rules, he used the laws to bend the rules beyond recognition, and two; Mabo decided everything for us. We do not need to prove anything, we already hold our Aboriginal and/or Torres Strait Islander TITLE to our LAND based on our LAWS, TRADITIONS and CUSTOMS. Everything else is just a distraction.

The real change needed in Australia today is for Aboriginal and Torres Strait Peoples to walk away from the Native Title Act, walk away from the Federal Court and start practising and enforcing our Aboriginal and/or Torres Strait Islander TITLE to our LAND based on our LAWS, TRADITIONS and CUSTOMS. That is the real reform we need in native title.

Aboriginal Activist Kado Muir is a Tjarurru man, a member of the Ngalia tribe who are desert people from the Western Australia Goldfields region. He is passionate about his Aboriginal heritage, history, language and culture. He teaches its values to all Australians through his writings, cultural awareness courses and artworks . - kadomuir.com

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Intimidation against Noongars exercising Sovereignty

The following media release by Kado Muir was read out to Western Australian Legislative Council by Hon Robin Chapple (Greens) on the 27th March, 2012 - Here a copy the  pdfHansard transcript (Pages 1291b - 1292a) .

Letter to West Australian Parliamentarians & Media . . .

23rd March 2012

Dear Member,

Government Campaign Against Aboriginal West Australians

"Today we witnessed a most appalling display of insensitive State sanctioned violence and intimidation against Noongar traditional owners exercising their Sovereign rights to enjoy spiritual and cultural communion with the spirit of their ancestral leader Yagan on the sacred site that is Marta Garup. Yesterday we saw the State government issue fresh compulsory acquisition orders for James Price point after the courts ruled their first attempt to take the land was not legal.

Western Australia is a State that steals thousands of dollars in wages from Aboriginal people for over half a century then offers to compensate that theft with a measly $2000 ex-gratia payment. It is a state that if an Aborigine should die without a will then their possessions by law becomes the property of the State. Each of these legally sanctioned crimes are supported through laws and policies that offend the very notion of a civilized society, yet no one is held to account while Aboriginal people, especially our men, continue to be arrested and imprisoned, in my home region of the Goldfields at a rate of 16% of our population.

If there is any common decency in this society that we (Australians) are so proud to praise then why is no-one holding Colin Barnett and the Government of Western Australian to account for what amounts in a civilized society to be crimes against humanity."

I am forwarding this on to you as a member of Parliament to ask you to take immediate action in addressing this gaping disparity in the situation of Aboriginal people here in Western Australia. You as a member of Parliament are elected to enact laws and govern for the benefit of ALL West Australians, however it appears that in the case of Aboriginal West Australians you as a member of Parliament are complacent in your powerlessness to do anything that substantially improves the situation of Aboriginal people in this state.

This is not a new development it has been a constant feature of the political landscape since William Dampier made his observations that "aborigines are the most miserable people he has ever encountered". That observation has proven prophetic since Aboriginal West Australians have indeed become the most miserable people in this State, largely through the implicit and explicit actions of parliamentarians and then those very same members then choosing the path of least resistance when dealing with substantive matters of importance to Aboriginal people, matters that may improve the levels of common decency afforded to us.

The actions of this current Government is building into a disgraceful record of campaigning to undermine the rights, freedoms and indeed human dignity of Aboriginal Western Australians. Paternalisitc comments from our Premier, "you've had your say now go home", comments by the Police Commissioner, "every time we go out there we are costing the tax payer $20,000" and I know the complacent perspective of each of you along the lines of "what can we do?"

Aboriginal Western Australians are fed up, we are fed up with your lack of action, your pandering to the lowest common denominator when dealing with us. The abosultely appalling and discgraceful ex-gratia settlement of only $2000 for all the money STOLEN from hard working Aboriginal people of this state, money stolen so that their descendants could never aspire to accumulating assets or wealth to improve their lives, and your excuse, "we lost the records!" Lost the records indeed, this doesn't stop your State Solicitors Office in finding enough information to undermine Aboriginal West Australians in their attempts to substantiate recognition of native title rights.

The appalling record of this Government unfortunately is not alone, Governments of every persuasion since Governor Hutt in the 1840's have chosen to ignore, oppress and undermine any semblance of human rights being afforded to Aboriginal Western Australians. This must change, and it must change on your watch. You are the duly elected member, elected to enact laws and govern for the benefit of all West Australians. If you choose not to take action then we as the Aboriginal people of Western Australia can only assume that you are choosing to enact laws and govern for the benefit of the Settler Society.

I am an Aboriginal person, I am fortunate to have a level of education that allows me the ability to critically examine issues of importance to my people and our wonderful State and Nation. We are all in it together, we can not undo the wrongs of the past, but we each and every one of us are accountable for our actions today. What will be your legacy, handballing the Aboriginal Problem to future generations of West Australians or will you be recognised as the Parliament that made a decision to effect positive change in the lives of Aboriginal people in Western Australia that allowed us as the First Peoples to live in harmony with the millions of Settler Peoples who now live on our lands.

I do not have access to vast reserves of cash like certain mining entreprenuers, so I can not influence your decisions with money, however in writing this letter I am appealing to your sense of common decency to stop the State sanctioned violence and abuse of Aboriginal people and take real action toward recognising the rights of Aboriginal West Australians, to live in peace (without fear of intimidation from the State), securely in decent homes and enjoy the ability to make decisions for our families in the knowledge that we can enjoy the same rights, privileges benefits that Settler Peoples are enjoying from the wealth of our traditional lands.

I look forward to witnessing some positive and dramatic change being effected by you in your role as a member of the Parliament of Western Australia that will go down in the annuals of history as the day that one State in Australia chose to stick its head up and make a difference for all of its citizens, the First Peoples and the Settler Peoples.

Western Australia