It’s that special time of the year again, when people talk about reconciliation, treaty, land rights, invasion, colonisation and Australia. The time of the year when racists fume and rant, when anti-racists and post-colonialists tell us they care and want us to be happy; the time of year when many Aboriginal people face the choice: fight or hide.
January can be toxic, mostly because it’s the lead-up to the worst of Australian holidays, “Australia Day”.
Enough has already been written about January 26 and why not to celebrate it to fill a book.
When whitefellas and the mostly whitefella governments talk about reconciliation I can’t help but think that their heart must not be in it. Colonisers gonna colonise and there appears to be a certain desperation, particularly on the part of the major parties, to maintain the status quo. What I am writing about in this column is probably not what you are expecting but perhaps what you need to read.
This piece is not about Invasion Day or changing the date, except insofar as every land rights issue stems from terra nullius and the invasion. This is not about the Voice to Parliament or the Uluru Statement from the Heart; enough is already being written about that right now without me sticking in my oar.
This is about the Mabo decision, about terra nullius, about land rights and the crown; which for most of my life was represented by Elizabeth II but is now represented in the person of Charles III. It’s about the legal frameworks and wrong thinking that proves the colonial government of Australia, which is draped across this sacred land like a shroud, really doesn’t understand what land rights are and how this all works.
Or, worse, whitefellas know precisely what this all means and callously do what they do, regardless.
If by some mysterious omission you are not aware of the history – the Mabo decision in 1992, named for Eddie Koiki Mabo, a man from Mer Island in the Torres Strait Islands, determined that Indigenous people have been here for thousands of years and that our land rights were not extinguished by either Captain James Cook’s claiming of the east coast of the continent in 1770 or the arrival of the First Fleet on January 26, 1788. It was only in 1992 that the courts recognised we were here, that Indigenous peoples had been on this continent for thousands of years.
Which is really … weird.
Think about it, before 1992 we did not legally exist, and after 1992 we had been here 60,000 years or so.
So why is this important and why am I writing about it in this the edition just before Invasion Day?
There is something that could be achieved before Treaty and before the Voice. Not because it should but because it would be easier; because it’s a change that will make a difference but does not need anyone to work particularly hard. Something that already fits within existing legal frameworks that the government and the people (this is a democracy after all) can implement right now. And it starts with a story, as many things do.
I have a book in my collection titled Jimmy and Pat Meet the Queen (Backroom Press, 1997). Written by Pat Lowe, it is illustrated by her husband, Walmajarri man Jimmy Pike. It’s a thin, little, unassuming book, with the form and simple language of something made for children. It oozes power – is simple enough for kids to get it but can also teach you something. I don’t want to spoil it entirely, but the central question to the narrative is one Australia refuses to answer: why is the onus on Indigenous people to prove our ownership of land? Surely the onus should be on the coloniser – in the book’s case, the Queen – to prove their ownership.
And why does the crown own land on this continent?
The land rights system in this nation is unnecessarily adversarial. It’s a system in which traditional owners are forced to prove ownership of land while the government is trying to prove such connections do not exist. The Hindmarsh Island case in Ngarrindjeri Country illustrates this perfectly. If you don’t know the story, here’s a potted summary.
In the early 1990s, a bridge was proposed from Goolwa, in what is now called South Australia, to Hindmarsh Island in the Murray River, near the mouth. The Ngarrindjeri people objected – particularly women, who said there was secret women’s business prohibiting any bridge to the island. The courts accused the traditional owners of lying, saying “secret business” was just a way to claim land rights but never tell people why, and in the end the bridge was built after the passing of a special law by the Howard government.
After the accusations of lying and grifting against the people who belonged in that land, the courts eventually determined the secret women’s business was real. By then it was too late, the colonisers had irreparably wounded that sacred Country.
The clarity of Jimmy Pike and Pat Lowe’s thoughts on this matter should not be underestimated or ignored. Why should the people whose land has been stolen have to prove our land was stolen? Why does the crown own land on this continent when the Mabo decision technically overturned the doctrine of terra nullius and the existence of crown land on this continent? This is the heart of the matter – the proof that the legal system of colonial lands is not an equal one, is not ready to decolonise, to reconcile, for Treaty.
An important distinction in the Mabo decision is that native title exists wherever it has not been extinguished by the land being put to other uses. Land claimed by Cook and then by Arthur Phillip was determined to have always belonged to the traditional owners. In other words, all unallocated or unclaimed crown land belongs to the traditional owners and not to the government or the crown.
It’s important to note that native title law in Australia is complicated, so complicated that people have built entire careers on attempting to understand it. I am not one of those experts, all I can do is talk about the spirit of the law, the literal meaning of the Mabo decision and the implication of words. Because if there’s only one thing I truly understand, it’s words.
There are many complexities to Mabo and land rights, but there is much that is not as complicated as you think. Importantly, the spirit of the decision, that all land in “Australia” is Indigenous land, is simple.
There is no crown land on this continent. That’s perhaps the most important statement for land rights and conciliation (I won’t say “reconciliation” because that implies a return to a relationship that was once conciliatory, which is something white and Blak Australia never had). It’s all legally and spiritually Aboriginal land. Always was, always will be.
Keep repeating those words, always was, always will be, like the people marching on January 26 are sure to, and you might begin to understand. Always was, always will be Aboriginal land. Always was, always will be Aboriginal land.
The Mabo decision determined that the crown did not legally occupy any land in the colony of Australia in 1788. All land holdings present in 1787, which is all land on the continent, continue to this day unless the title has been extinguished by allocation between 1788 and the Mabo decision. Post-Mabo, the crown owns no land in Australia. Crown land should not exist; the Mabo decision gives traditional owners the right to claim crown land once they have asserted their land rights.
Yet regardless of this, the adversarial stance of the government against land rights continues. To use an example close to the bone, when the Noongar people, my people, won our land rights case and proved our connection to our lands, the government of Western Australia fought us in court for years. It’s still ongoing; I am losing hope that it will ever be resolved. Most of our land is “crown land”.
The only reason I can think of why crown land is not being returned to traditional owners is a refusal to give us back what is ours.
Want to prove you give a shit? Want to prove reconciliation is possible? Return all vacant crown land to the traditional owners of that land, return what you have stolen but have not used. All traditional owners have the right to claim unclaimed crown land post-Mabo, but when we ask for our land back, particularly when that land contains mineral resources or is in the temperate south of the continent or near a capital city, the government, no matter what party is in control, fights us.
This fighting can end.
This article was first published in the print edition of The Saturday Paper on January 21, 2023 as "The crown owns no land".
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