At the invitation of the Mabo family I am attending the quarter century commemoration of June 3, 1992 High Court win that Eddie Mabo did not live long enough to see. I find myself in Townsville where Eddie’s journey began and culminated in the political landscape being changed. I have reflected on native title, on “unfinished business”, on the 40 per cent of our brothers and sisters who are of the First Peoples who remain living below the poverty line, who are incarcerated and suicide at among the world’s highest rates.
Eddie Mabo was a social justice warrior, a land rights warrior, a political warrior in the unfolding struggle for equality.
I am from Western Australia, where in the 25th year since native title began half of the Aboriginal population of my state may soon be without native title rights. Is this what Eddie Mabo would have wanted to see, the extinguishment of native title? However this precedent is likely to occur. It has been stalled because of a Mabo-like heroic bid by four Noongars – Margaret Culbong, Mingli McGlade, Naomi Smith and Mervyn Eades who challenged the Indigenous Land Use Agreements (ILUAs) that if signed off would extinguish native title for the Noongar peoples.
On February 2, in a unanimous decision, three Federal Court judges, ruled in favour of the complainants and the ILUAs were invalidated. However the Commonwealth Government is arguing with itself in a ramshackle run to rewrite the rules, to amend the Native Title Act to in fact invalidate the Federal Court decision. The Noongar complainants are backed by a legal team reminiscent of the Mabo team (barrister Ron Castan, solicitor Greg McIntyre, junior counsel Bryan Keon-Cohen). Like Eddie Mabo who in his years of struggle and dedication, so too the Noongar complainants have been written off by the majority and the media. The Noongar warriors are represented by a former Federal Court judge and constitutional expert, barrister Ron Merkel. If they win in the High Court there shall arise rightful demand for meaningful repair to the Native Title Act. The Native Title Act 1993 was a reduced effort by the Keating Government after the hysteria generated through the media by the 1992 High Court ruling. In 1996, the Howard Government butchered the Native Title Act, ‘extinguishing’ much from it.
The Noongar native title ‘deal’ in my view is actually not a native title deal but instead a deal to extinguish native title rights for Noongars. It is the deal to end any possibility of further native title deals. I am positive that if Eddie Mabo were here today he would be arguing against this and that his anger would be predicated by repulsion at this retrograde deal.
Furthermore, there are those who have been describing this stated ‘deal’ between Noongar peoples and the Western Australian Government as a ‘treaty’. This includes the chieftains of the Victorian and Northern Territory Governments, Daniel Andrews and Michael Gunner. If this is what treaties look like then I strongly recommend, “run”. We also hear all too often of the “treaties” with the First Peoples of the United States of America but these “treaties” have corralled them in parcels of lands, in reserves, where they are ghettoized, live impoverished, suicide at horrific rates. These are treaties that no right-minded person should entertain. If treaties do not come with guaranteed rights, affirmative actions, land rights then what are they about?
The Treaty of Waitangi, 1840, is one of the strongest bilateral agreements focusing on cultural integrity and ‘voice’ but still shy of an ideal; equality. 177 years ago Maori ownership of their lands was recognised. With Australia, the colonialists had already called in “Terra Nullius”.
Treaties are agreements, and they are not always law unless enshrined with the legal onus in the overarching legal tablet of a nation, such as the Australian Constitution. Historically, treaties were an agreement between parties, where invasion brought peoples into conflict and hence a treaty could propose to secure living arrangements and a sense of peace but with the invaded agreeing to surrender, to cede their lands.
Legally, treaty is an agreement between two parties, in effect one party cedes while the other party accepts. The Australian continent’s First Peoples can argue that they never ceded their lands because there was never a treaty to do so, there was never a truce. The best legal minds are needed, from understandings that treaty should not countenance an inherent ceding argument, in order to protect the best interests of the First Peoples.
In 1765, scholar William Blackstone stated of ‘colonies’, “(They) are such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have either been gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations.”
In 1969, the Vienna Convention on the Law of Treaties was adopted on treaties between ‘states’. By 2014, 114 nations had ratified the Treaty on ‘treaties’ but countries such as the United States of America which has not signed it, recognise only parts of the Vienna Convention such as ‘acknowledging’ ‘customary laws’. However the Vienna Convention limits Treaty to an agreement between parties and though there are rights such as affirming, if not enabling, customary laws the depth of the affirmation is not bedrock, but ‘negotiable’.
When looking through the racialised lens we find that 40 per cent of this continent’s First Peoples live in poverty. Therefore understanding what a treaty means or should mean is imperative. There are paper-thin treaties the world over, where inequalities and diabolical disparities remain. Treaties need to be understood in terms of what they should mean and not what they have meant. They must be a mechanism to equality and the right to be as one chooses to and treaties must not be limited to benefiting some but not others.
Native title is a form of treaty, because it is an agreement between parties, but one that has failed to lift everyone out of inequality however it has been a step in a right direction. However native title is in effect a devoured and minimalist compensatory mechanism for First Peoples. It is not about land rights, nor property rights. It is about exclusive and non-exclusive use of designated lands. The Commonwealth has powers to compulsory withdraw rights over designated areas – the compulsory acquisition laws that can be enabled within 18 months of failed negotiations for instance between mining entities and the native title owners.
Eighty thousand First Peoples live in Western Australia but soon half maybe without any native title rights. Though more than 90 per cent of the eligible Noongar voters did not vote, the stated ‘deal’ between Western Australia and Noongar peoples will see them cede native title rights. This has been stalled by the Federal Court ruling which invalidated the ILUAs because they were not signed off by all the claimants. It’s like a home where there are multiple owners and requires the consent of the owners, all of them, to sell it and subsequently to sign the settlement documents. Who could have imagined this in 1993 when the Native Title Act was cobbled together?
Native title had been intended as a compensatory mechanism, in perpetuity, to sponsor social remedies and reforms for generations of the disadvantaged and marginalised.
What hope for future generations of Noongars if the paltry $600 million to be disbursed over 12 years to six regional entities is spent up with little dividend extracted in terms of positive outcomes and change for the coalface? The rest of the compensation package is not worthy of mention; reductionist and minimalist goodwill.
One in 9 of Perth’s Noongar children have been removed from their families. The majority of Noongar families have someone in gaol. The suicide rate is a horrific one. One in two Noongars live poor.
A quarter century later there is only respect for the social justice warrior Eddie Mabo. On May 10, in Canberra, Gail Mabo commented that her father began the journey but there remains “unfinished business” and concluded with encouragement to those who continue a journey he began.
Treaty is defeated if it is about a truce, if it is about acknowledgments alone, if it is another paper-thin document, if by sleight of hand it does away with rights and fails the obvious ways forward for those living below the poverty line, the majority in a punishing narrative of human misery and suffering.