An Historical Perspective on the Struggle for Land Justice in Victoria

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Graham Atkinson and Mark Brett Native Title Services Victoria | 23 Aug 2007

This year we celebrate the 15th (Edit: Written on 17th August 2009) anniversary High Court's Mabo decision and the 40th anniversary of the 1967 referendum, so over the past few months there has been a lot of discussion in the media regarding achievements in Indigenous affairs. More recently, of course, there has been the debate over the extraordinary intervention of the Commonwealth Government in the Northern Territory, including a suspension of the Racial Discrimination Act within the legislation just passed. These actions of the federal government might be worth discussing at some point, but our topic this afternoon calls for a focus on the Victorian context. So let's begin with a brief historical perspective on developments in our own state, especially since the referendum of May 1967, and perhaps that will lead to some discussion of the wider Australian context a little later.

In focusing on events since the 1960s, we are by no means undervaluing the importance of the earlier struggles, the petitions, the letters, the determination to hold on to Aboriginal reserves. The actions taken by leaders like William Barak and William Cooper, for example, were vital to keeping the spirit of resistance alive.

Wayne Atkinson has paid tribute to William Cooper's work in helping to inspire more recent generations of the Yorta Yorta. 'One can be assured', writes Wayne, 'that Uncle William's words will continue to be the driving force of the Yorta Yorta struggle'.

It was, however, during the 1960s that the campaigns against discrimination started to find receptive ears within the democratic majority, and the aspirations for land started to move from defending the reserves to the broader issues surrounding land ownership and self-determination.

Wayne Atkinson, 'Not One Iota of Land Justice: Reflections on the Yorta Yorta Native Title Claim 1994-2001', Indigenous Law Bulletin 5/6 (2001), p.23.

Victorians achieved the highest level of consensus in the referendum, with 94.68% saying YES, and the intention to move beyond racial discrimination was absolutely clear. However, with the benefit of hindsight, it is also clear that the constitutional amendment fell far short of substantial cultural recognition. Indigenous people could be recognized in the census, and the States lost their monopoly to create legislation that governed 'the Aboriginal race', but otherwise, the legal effects of the constitutional changes have been ambiguous.

Indigenous people had already acquired the right to vote in Commonwealth elections in 1962, and most of the States were divesting themselves of the discriminatory powers to regulate marriage, children, residence, property ownership and wages.

For much of Victoria's earlier history, Aboriginal people were subjected to those discriminatory powers while being provided land in reserves overseen by European managers.

The land was subjected to the whims of a parliament who regularly annexed parcels of the reserves and sold them off, a disheartening experience of life under the capricious pen of the state. The progressive loss of reserve lands has often been seen as a second wave of dispossession, and there are many stories of resistance from these days, especially from Coranderrk and Framlingham.

In the years leading up to the referendum, the fight to retain Lake Tyers emerges as one of the most significant stories. The Victorian Aborigines Advancement League had been established in 1957, and under the charismatic leadership of Pastor Doug Nicholls, it became the powerbase of the struggle. The Aboriginal Welfare Board had been established under the Aborigines Act of the same year, 1957, and the Board was determined to implement its assimilationist policies.

In 1962, the Aboriginal Welfare Board announced that Lake Tyers station was to be closed within a few years and began to facilitate its running down. A number of Lake Tyers families were relocated, and even sent as far as Stawell, Horsham and Ararat. Many appealed to the Board for permission to return to Lake Tyers, but all their pleas were denied.

Richard Broome, Aboriginal Victorians: a history since 1800, Allen & Unwin, 2005, p.324.
See Mavis Thorpe Clark. Pastor Doug: the story of Sir Doug Nicholls, Aboriginal Leader,
Lansdowne Press, Melbourne, 1972, pp.226-227.

In 1965, the protests against the closure of the reserve escalated with marches, petitions, and calls for the recognition of Lake Tyers as the inalienable property of Aboriginal Victorians. By May 1965, the Board accorded the reserve a permanent status.

The success of the campaign to 'Save Lake Tyers' could perhaps be attributed as much to Pastor Doug Nicholls' popularity as to the public recognition of his cause. In fact, he had himself been a member of the Aboriginal Welfare Board, and he resigned in April 1963 in protest against the plan for its closure. He later advised Lake Tyers people to 'sit tight and refuse to leave'. On 22nd May 1963 Pastor Doug had led forty residents, almost the entire Lake Tyers population at that time, in a march through the streets of Melbourne to parliament. There he presented a petition of 260 Aboriginal signatures demanding 'the absolute retention of Lake Tyers for the benefit of Aboriginal people', 'adequate finance to develop it, the end of all restrictive rules, and moves towards its full control by the people within five years' and the establishment of a Department of boriginal Affairs.

In June 1963, Pastor Doug and the Advancement League appealed to the United Nations in a telegram that read: 'Australian Government ignoring minority right of Aborigines. Two million acres of reserves alienated since 1859, further million threatened. Residents moved without consent or compensation. United Nations inquiry requested'.

Victims or Victors: The Story of the Aborigines Advancement League, Hyland House, Melbourne,1985, p.73.
Bette Moore, 'Victoria: Present Situation' in N. Peterson and M. Langton eds, Aboriginal land rights in a handbook, Australian Institute of Aboriginal Studies Canberra, 1981, p.150.
Bain Attwood, Rights for Aborigines, Allen & Unwin, N.S.W., 2003, p.245; Broome, Richard. Aboriginal Victorians: a history since 1800, Allen & Unwin, 2005, p.334.
Richard Broome, Aboriginal Victorians: a history since 1800, Allen & Unwin, 2005, p.334.

Although Lake Tyers had been declared a permanent reserve in 1965, it was not until April 1970 – three years after the referendum – that the Aboriginal Land Act transferred 1,510 hectares at Lake Tyers and 183 hectares at Framlingham to Aboriginal people. The Lake Tyers Aboriginal Trust and the Framlingham Aboriginal Trust then became entitled 'to manage and improve the land, carry business on it and to hold, sell or lease the land'.

In the years immediately following the referendum in May 1967, this was the only major handback of land. It was not until the federal election of 1972 that more substantial initiatives seemed possible. Gough Whitlam took the view that the 1967 referendum had transferred 'ultimate responsibility for Aborigines' to the Commonwealth, and he embarked on a range of ambitious new ventures.

Whitlam was not advocating the notion of 'equal rights' that has amnesia in relation to the history of dispossession. He was drawing out the implications not just of referendum in 1967 but of events that took place the year before – when the Gurindji mob walked off Wave Hill station and started to work out what justice for Indigenous people might mean.

With the Aboriginal Land Act of 1970 behind them, as well as the Whitlam-commissioned 'Woodward Report' of 1974, the Victorian Aboriginal Land Council (VALC) was born in 1975. It survived a total of 32 months, without the benefit of the land rights legislation or the resources that were to be available in other States. The Northern Territory Land Rights Act of 1976 found no analogy in Victoria. Shortly before its demise, the Council wrote to Minister Ian Viner stating that, 'because of the somewhat paternalistic attitude we have not been allowed to administer our own affairs properly. For example, because we have no typewriter it is very difficult for correspondence to be

Nick O'Neil and Robin Handley, Retreat from Injustice: Human Rights in Australian Law, The Federation Press, 1994, pp.448-449.

dealt with.' A successor to the Victorian Aboriginal Land Council, the South Eastern Land Council, fared little better.

One of the members of both Councils was David Anderson, who on the 10th May 1982 began a hunger strike, camped in Treasury Gardens not far from the office of the newly appointed Premier John Cain. He demanded the return of all Crown land to its traditional Aboriginal owners and cash compensation for dispossession from traditional lands and resources.

Two weeks into David Anderson's hunger strike, Premier Cain announced the Government's intention to hand back the Framlingham Forest near Warrnambool. Public attention had already been drawn to the Forest by the blockades of an access road in 1979 and 1980. And this is where the referendum comes back into the story:

Cited in Bette Moore, 'The Victorian Aboriginal Land Council 1975-77' in N. Peterson & M. Langton (eds.), Aborigines, Land and Land Rights. Australian Institute of Aboriginal Studies, 1983, p.246.

after years of struggle, and with the Victorian Liberals resisting Premier Cain's land rights Bill in the Upper House, it was the Hawke federal Government in 1987 that finally saw to it that Lake Condah and the Framlingham Forest were handed back (1,162 hectares in total).

1983 was a particularly fateful year in the struggle for land justice in our State: that was when a Land Rights Act was adopted in NSW, and the beginnings of the parallel attempt in Victoria bogged down in controversy. The NSW Act established a funding strategy linked to land tax which now sees the statewide Land Council in that State blessed with more than half a billion dollars in investments. In Victoria, there is no comparable fund to address land justice.

In 1984, the Social Development Committee of the Victorian Parliament, a joint committee, concluded an inquiry into compensation for dispossession. The committee focussed on land, finance and cultural recognition, and their Report outlined a number of principles for how compensation should be funded and managed. That Report also ran into the sand, as did a revised land claims Bill. Even after the Lake Condah and the Framlingham Forest Act of 1987, and some other additions to the Indigenous estatesince then, Victoria still has the smallest Indigenous estate in the whole of Australia – less than 0.07% of Victoria's land mass, about 200 times below the average achieved by the other States and Territories.

The historic Mabo decision in 1992 was a huge boost to indigenous morale, but the trickle-down effect in Victoria was a long time coming, and initially devastating. The Native Title Act of 1993 was beset by a number of ambiguities, and the High Court's

Report upon Inquiry into Compensation for Dispossession and Dispersal of the Aboriginal People. Melbourne, Government Printer, 1984; Ken Coghill MP, Victorian Government Aboriginal Affairs Discussion Paper, Government Printer, 1984.

decision against the Yorta Yorta people in 2002 revealed just how damaging those ambiguities were.

The Court presumed that the traditional owners of that country could only be recognized as native title holders if we had preserved our laws and customs essentially snap frozen since the assertion of British sovereignty. In short, native title jurisprudence in this case demonstrated little regard for the cultural damage wrought by past governments. It is hard to find the words to explain the consequences of these legal decisions, which can only be described as a miscarriage of justice.

The tide started to turn, however, in December 2005, when Justice Merkel ruled Wotjobaluk, Jaadwa, Jadawadjali, Wergeia and Jupagulk peoples had not been 'washed away by the tide of history'. The focus of the recognition was a strip of land alongside the Wimmera River, but the State also agreed to co-operative management arrangements for a larger area of Crown land and reserves.

This judgment was however arrived at by negotiation, rather than litigation, and the outcome represented significant sacrifices on the part of the Wimmera clans. The outcome nevertheless creates public recognition of the traditional owners and lays the groundwork for further initiatives in the region.

In March this year, there was another major step forward when the Federal Court recognized the Gunditjmara people as holding native title over approximately 2000 parcels of Crown land in Victoria's South West, about 0.6% of the State. Once again, this was a negotiated outcome, and in this case the State did not require the surrender of native title in any part of the claim area.

In delivering his judgment, however, Justice Tony North drew attention to the factthe 'identity, beliefs, culture and history of a people' are not appropriate matters to be leftin the hands of judicial processes. The worldwide trend is towards alternative forms ofdispute resolution, he suggested, the outcomes of which may then be captured in courtorders. This is especially true of native title matters, and the quest for Indigenous landjustice more generally.

It must be noted that native title is not land ownership. It is a bundle of rights thatmay be exercised over Crown land, and exercised in a manner that does not affectexisting interests. The wider Australian community has nothing to fear here. It is quitepuzzling, not to mention damaging, when Governments repeatedly find it necessary to contest the rights of traditional owners.

These rights are regularly defined in native title terms as 'non-commercial', and they yield very little economic advantage. This is in spite of the fact that Indigenous laws and customs cover all matters related to our traditional economies, including the use of natural resources.

So what would it mean for traditional owners to have 'equal rights' with other Australians, as was perhaps implied by the referendum in 1967? We don't all start on a level playing field. Some outstanding injustices are yet to be addressed before we can even begin to talk about equal rights.

In Victoria, the 'YES' vote was strongest. Yet this State's performance on landjustice is arguably the weakest in all of Australia. The current Government is now wellpositioned to do something about this. They could take the lessons they have learned inGunditjmara country into the other areas of the State where traditional owners are stillwaiting for justice to be done.

We now have 16 native title claims in Victoria, with only three claims determinedafter more than a decade of over-heated argument and wasted resources. The State Government could resolve these claims by negotiation, as they have recognized, and resolve them quickly if they offered a package of benefits to traditional owners inexchange, perhaps, for the withdrawal of claims.

What might a package of benefits include? It would need to include the return ofculturally significant land. It would include the joint management of national parks, as isthe case other States. It would include the sustainable development of traditional ownercorporations, so that they have the capacity to manage their interests in land, culturalheritage and natural resources.

This is not about handouts. We are not talking here about the provision of health,education and community services that are the right of every citizen. That's what we fought for back in 1967, but that was only part of the agenda for reconciliation. Now we are concerned about land justice, making sure that traditional owners receive the inheritance that has been wrongfully taken from them.

Traditional owners who have maintained a continuous connection with theirtraditional lands may yet be rewarded with Federal Court recognition of native title. That is the form of legal recognition given to peoples who have managed to sustain thatcontinuous connection under the tides of colonisation. But we don't accept thepresumption that the Court's current definition of"connection" is satisfactory. Native title does not deal with historic dispossession, and it barely begins to address thefundamental questions of justice.

These are the sorts of issues that the Victorian Traditional Owner Land JusticeGroup has been raising with the State Government over the last two years. The LandJustice Group is an unincorporated body of around 20 Traditional Owners, each ofwhom is nominated by their group to advocate on behalf of the first nations in Victoria.There is currently a smaller team mandated to negotiate with Government Ministers onbehalf of the full Group.

Three senior ministers within the State Government have been engaging with theLand Justice Group, and we have already seen some promising signs of movement. If the process goes well, there might be some Lingiaris at the end who are willing to say"we be mates now". If it doesn't go well, we can expect neither reconciliation norsubstantial economic outcomes for traditional owners in this State. So we say to theMinisters,"Seize the day, and all Victorians will benefit".

See further Graham Atkinson, 'No Cause for Celebration on Victoria's Land Rights Record' The Age, 4 June 2007, and Mark Brett, 'Reconciliation without Land Justice is Hollow' The Age, 1 September 2006.

Graham Atkinson, Chair of Native Title Services Victoria
Mark Brett, Policy Officer at Native Title Service Victoria
Published in PDF format by on the 3rd August 2007