section 1: mabo and wik -...

Geography

Stage 5

Road to reconciliation: Part 1: Mabo to 2000

Section 1: Mabo and Wik

2 Road to reconciliation

Part 1 Section 1 Mabo and Wik 3

Contents

Mabo and Wik 5

Introduction 5

Mabo 5

It was about native title 6

Wik 8

Its significance 13

Exercises – Mabo and Wik 15


Mabo and Wik

Introduction In Part 1, you’ll map significant locations and investigate the difference

between Crown land, freehold and pastoral leases and what this means for

native title. You’ll then organise a storyboard that presents the events of

Corroboree 2000 before discussing the need for a national ‘Sorry’.

Have you heard of Mabo? Wik? Terra nullius?

Have you heard of native title?

They are names and phrases that have significance for all Australians because

they represent legal decisions which have changed the land rights of

Aboriginal and non-Aboriginal Australians. In Section 1 we will investigate

the Mabo and Wik decisions from a geographic perspective.

Mabo Terra nullius was the idea that Australia was a land belonging to no one

when the first Europeans arrived and that therefore there was no need for the

Europeans to sign a treaty with the inhabitants.

Eddie Mabo, David Passi and James Rice lived on the Island of Mer

(Murray Island) in the Murray Islands of Torres Strait shown in Figure 1. In

1982 they began legal action in Australia’s High Court. Their people had

lived in the Murray Islands for hundreds of years and they wanted to

establish their legal title to the land. The action became known as the Mabo

case. Native title would mean that Indigenous people had the right to own

land and what that land produced.

Ten years later, the Meriam islanders were successful. They had been able

to demonstrate an unbroken line of title to their land and the High Court of

Australia accepted that the land belonged to them. This decision made on

3 June 1992, meant the end to terra nullius, ‘empty land’ in Latin.


Figure 1: Map showing the location of the Murray Islands.

Study the map in Figure 1.

Circle the Murray Islands in Torres Strait, just north of Cape York on the

north-eastern peninsula of Australia.

It was about native title

For Aboriginal people, the High Court decision recognised native title on

vacant Crown land. Crown land is land owned by the government on behalf

of all Australians. At the time, it was approximately 12% of the Australian

continent.

However, the High Court decision also stated that native title had been

extinguished (put out, lost) by the granting of freehold land. This was land

owned by individuals or corporations but free of government ownership.

These findings were incorporated in the Native Title Act (NTA) of 1993 and

relate to the information below. The diagram is explained on the following

page.


Figure 2: Diagram describing different categories of land


On Figure 2

• find ‘Crown land’

• follow the path down the left side of the diagram through ‘vacant’, to

‘native title’ and, ‘Aboriginal and non-Aboriginal Australians co-exist’

• return to ‘Crown land’ and follow the path down through ’occupied’

• see how ‘occupied’ land can be either a ‘shared lease’ or else an ‘exclusive

lease’

• if it’s a ‘shared lease’, native title can exist

• if it’s an exclusive lease, native title is extinguished but under the 1993

NTA, Indigenous people have the right to negotiate access.

Go back to ‘occupied’ and trace down the path to:

• ‘grant’ which means someone has ownership of the land

• ‘native title extinguished’ which means that in Australian law, the

traditional owners have no claim to the land

• ‘1993 NTA’, Indigenous people have the right to negotiate access.

The repercussions

The Mabo decision left the question, ‘Could native title exist on other land,

particularly pastoral leases which accounted for approximately 42% of

Australia?’ These were lands that were leased to farmers so they could graze

their livestock, usually cattle. The farmers did not own the land but they

could make improvements such as build fences to keep stock contained and

dams to provide water for them.

Landholders, farmers, developers and the government wanted to know if the

right to use the land exclusively was under threat. They sought clarification

of land ownership and it came with the Wik decision.

Wik Wik refers to the Aboriginal nation of the Wik-Way people in the

Cape York area of Queensland. Their traditional lands are shown in Figure 3

by shading on the western side of Cape York


Figure 3: Wik land

Find ‘Wik and Wik-Way Peoples’ in Figure 3.

From your own knowledge, and what you have already learned in Geography,

describe this part of Australia.

Is it:

• an inhabited or largely uninhabited area?

_____________________________________________________

• tropical wet/dry or arid climate?

_____________________________________________________

• grassy woodland or desert vegetation?

_____________________________________________________

• extensive livestock rearing or intensive dairy farming?

_____________________________________________________


largely uninhabited

tropical wet/dry

grassy woodland

extensive livestock rearing

The Wik lands

Much of western Cape York where the Wik people live is occupied by very

large cattle properties, and many of these are owned by large Australian and

multinational corporations.

The Wik were among the first Aboriginal people after Mabo to seek

clarification of native title. They could show a continuous connection with

their traditional lands which they shared with the cattle owners. The High

Court of Australia determined that native title could co-exist with pastoral

leases. In other words, it confirmed that native title continued to exist

because the public lands had been leased and pastoralists could co-exist,

both using the same land. Through negotiation, the Wik people could

maintain their camps and access to ceremonial and sacred sites while the

pastoralists could graze their cattle.

However, the Wik decision sent alarm bells through some sections of the

Australian population including the Federal Government. John Howard,

then leader of the Liberal Party and Prime Minister of Australia, proposed

ten points to ensure ‘certainty’ for pastoralists. Among much controversy,

these were incorporated in a Bill that went before Federal Parliament and

which was passed in 1998 as the Native Title Amendment Act (NTAA).

Features of the Native Title Amendment Act 1998 appear in Figure 4.

Indigenous Land Use Agreements

ILUAs are voluntary, legally binding agreements about the use and

management of land, made between Indigenous groups and others with

interests in a particular area. ILUAs are practical and flexible as they are

developed to suit the different needs of the groups and the land use issues

they’re working through.

In 2005 the Wik and Wik Way peoples and pastoralists began coordinating

their rights and activities on three north Queensland pastoral holdings

following the National Native Title Tribunal’s registration of three

indigenous land use agreements (LIUAs).

The agreements were the result of negotiations between the Wik and Wik

Way peoples, the Queensland Government and the lessees of three pastoral

holdings on the west coast of Cape York Peninsula where the Wik and Wik

Way peoples sought recognition of their native title rights and interests.


The registration of these agreements, and a further agreement between the

Wik and Wik Way peoples and Cook Shire Council, brought into effect two

native title consent determinations the late Justice Cooper of the Federal

Court made in October 2004. These determinations recognised the Wik and

Wik Way people’s native title rights and interests over 12,530 sq km on the

peninsula.

The finalisation of the agreement is an example of how all parties can come

to the table and recognise an outcome which accommodates all interests

without traditional owners losing their traditional rights and interests.

Native Title Amendment Act Considerations

Where a pastoralist has exclusive use of

public land, native title is extinguished

(lost)

42% of Australia is covered by pastoral

leases–this is public land owned by all

Australians and leased by farmers

Most of the leases are held by 16 private

families and 19 corporations

The pastoral industry was built using paid and

unpaid Aboriginal labour

Where there is conflict, the rights of the

pastoralist prevail over those with native

title

Aboriginal peoples can be refused access to

the lands their families have inhabited for tens

of thousands of years

Where native title claimants can show

physical access to land, this would continue

until the native title claim is determined

Aboriginal peoples have sometimes been able

to live on their traditional lands while working

for the pastoralists–this was peaceful co-

existence

Pastoralists were able to upgrade their

leases to freehold

This is the equivalent of giving public lands to

the pastoralists for the cost of a lease

Many pastoral leases cover environmentally-

sensitive land

Pastoralists were now allowed to engage in

any forms of primary production, including

logging, fishing and farm-stays

Pastoralists’ activities were previously

restricted to grazing animals

The government will regulate and manage:

• surface and sub-surface water

• off-shore resources

• airspace.

Figure 4: Comments on the Native Title Amendment Act 1998 (NTAA)


Previously native title existed where:

• no one else had exclusive use of the land

• a continuous connection with the land could be shown by the traditional

owners.

Did the NTAA affect freehold land or pastoral leases?

_____________________________________________________________

_____________________________________________________________

What two major changes occurred in terms of pastoral leases?

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

The Wik decision only affected those who had pastoral leases. It did not affect those

who held land as freehold.

Two changes to the pastoral leases were:

• they could be upgraded so they were the equivalent of freehold

• pastoralists could engage in any primary production, including farm-stays.

Figure 5 summarises some of the changes as a result of NTAA 1998.


Figure 5: Diagram summarising changes to native title as a result of NTAA 1998

Note: The grey boxes identify the changes made as a result of the NTAA

of 1998.

Spend a minute or two visually tracking through Figure 5 and seeing what

changes arose as a result of the NTAA of 1998.

Its significance The Wik decision was significant for a number of reasons. Those who

leased land for grazing livestock did not have exclusive use of the land, and


did not own it but as a result of the NTAA, they could now engage in all

forms of primary production and tourist activities.

Native title holders whose land was subject to pastoral leases were to have

no right to negotiate. Where native title holders and pastoralists co-existed,

native title holders were to have the right to negotiate once only.

The legislation brought greater certainty for pastoralists and miners and

actually increased their rights. Pastoral and mining production could now be

guaranteed across Australia.

For those holding native title it was a setback. Their rights to negotiate were

limited and where there was conflict, the rights of the pastoralist were to

prevail.

Now it is time to complete the exercises and return them to your teacher.


Exercises – Mabo and Wik

Exercise 1

a Using the map provided, locate and label the following places:

Torres Strait Murray Islands Cape York

Gulf of Carpentaria Each state and territory Wik lands

Equator Tropic of Capricorn Australia

Map showing the location of the Murry Islands and the Wik and Wik-Way Peoples‘ land


b Using the boxes below and the glossary, provide simple definitions of:

crown land

freehold

pastoral lease.

% of Australia Description of Land Tenure

Crown land

_________________________________________

_________________________________________

_________________________________________

_________________________________________

_________________________________________

Freehold

_________________________________________

_________________________________________

_________________________________________

_________________________________________

_________________________________________

Pastoral lease

_________________________________________

_________________________________________

_________________________________________

_________________________________________

c From the information provided in Section 1, what is the approximate percentage of

Australia given over to each form of land tenure? Write your answers in the left

column of the table above.


Exercise 2

a Using the following diagram as a prompt, explain the different categories of Crown

land in terms of claims to native title. You may like to make a recording that you can

return to your teacher.

Remember to state your name and the topic when you begin.

Diagram describing different categories of Crown land

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________


b As a summary of the changes brought about by the NTAA of 1996, cut out the boxes

on the next page, and place them in appropriate positions in the diagram.

For example, the note, ‘1998 Native Title Amendment Act: Indigenous people have the

right to negotiate access only once’ can go on the diagram after the reference to the

1993 Native Title Act.


Leases could be upgraded to freehold

1998 Native Title Amendment Act.

Indigenous people have the right to negotiate

access only once

Pastoralists gain more secure tenure (use)

Some Aboriginals excluded from access to their

traditional lands

Where there is conflict over usage, the rights

of the pastorialist prevail


Exercise 3 Short-answer responses

Read the following article then answer the questions that follow.

Camilla Cowley was a pastoralist in western Queensland at the time of the challenges to

native title in 1996. The following extract from an article by Frank Robson explains her

views.

‗…Cowley is a tall, vivacious woman with short dark hair and the air of a perpetual schoolgirl. She grew up a tomboy on the family grain farm near Toowoomba in Queensland, devoted to her non-religious father but less close to her ―letter-of-the-law‖ Catholic mother.

―When I read Don Quixote,‖ she says, ―I realised that‘s who Dad was — always out for the underdog. He became my greatest model for social justice.‖ Camilla became a primary school teacher, then married Kerry Cowley, the son of a local grazier family. In 1979 the couple bought Yancho, a 9000-hectare property near St George in western Queensland.

In 1996, when conservative forces massed against the ―threat‖ of native title claims, the process by which Camilla Cowley would later become a champion of asylum seekers began to unfold. At first the Cowleys believed the widespread predictions of dire consequences for landholders. ―Our place was under a claim by the local Goongarrie people,‖ says Camilla, ―and we were told that if we didn‘t fight it tooth and nail, we could lose everything.‖

Their concerns grew when John Howard appeared on TV with a map of areas supposedly threatened by native title claims. ―I‘ll never forget that,‖ Cowley says, shaking her head.

―Sitting there, watching the Prime Minister of Australia saying that over 70 per cent of the country — a huge area shaded on his map — would be subject to the right of (native title) veto, and in jeopardy. And it was completely wrong! But how could you convince anyone of that after Johnny Howard had said it on TV?‖

For Cowley, the ―light dawned‖ after she ignored the warnings of rural groups and met directly with the Goongarrie claimants. She found that, contrary to what she‘d been told by Yancho‘s previous owners, the property was ―littered‖ with Aboriginal artefacts, supporting the Goongarrie claim that it had been one of their regular camp sites. After much debate, Camilla convinced her husband to sign a co-existence agreement with the claimants.

―All it really meant,‖ she says, ―was that 1200 acres (485 hectares) of the property‘s best flood country was protected as a nature reserve, and that the Goongarrie would have perpetual access to that area ...‘

Source: ‗Playing away‘, by Frank Robson, The Sydney Morning Herald’s Good

Weekend magazine, February 15, 2003 pp 35–40.


a What is the name of the woman in the article?

_____________________________________________________________________

b Where did she grow up?

_____________________________________________________________________

c What property did she own with her husband?

_____________________________________________________________________

d What was her first response to the native title claims?

_____________________________________________________________________

_____________________________________________________________________

e How much of Australia was potentially affected by native title claims?

_____________________________________________________________________

f Who were the traditional owners of her property and how were they able to show this?

_____________________________________________________________________

_____________________________________________________________________

g What were the features of the co–existence agreement that the property owners signed

with the traditional owners?

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

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