Tomorrow many Australians will recall the 15th anniversary of the High Court’s decision in the case for native land title brought by Eddie Mabo and his fellow Murray Islanders, David Passi and James Rice, in respect of the Murray Islands in the east Torres Strait.
Through the years there have been forlorn calls for Mabo Day, June 3, to be made an official day of remembrance in our country. It is a proposition I support, but the country’s understanding of Mabo is not yet mature enough for this step to be taken. It could and should only be taken when Mabo the court ruled that native title based on traditional links was recognised by common law is understood and supported as overwhelmingly as the changes to the Constitution in the 1967 referendum, carried by 91 per cent of the electorate.
In other words, only when opponents such as Peter Howson, former Aboriginal affairs minister (1971-72), come to accept the importance of Mabo can the nation begin to understand the issue’s wider significance. In a recent article in Quadrant magazine (April) Howson recapitulated the conservative-Liberal opposition to communal land title and land rights generally.
Howson misinterprets my own advocacy when he writes: “The switch to land rights implied, although Kim Beazley snr did not comprehend it, a turning back from assimilation to an imaginary hunter-gathering past which was no longer possible. The theory underlying the land-rights movement was a mixture of rent-seeking, proclaimed ceremonial necessity and the illusion that wealth accrued in the manner associated with English aristocracy to the landowner. Noel Pearson, a contemporary captive of the land-rights fantasy, is fond of referring to the English lord, secure in the enjoyment of his estates and the rents which are derived from them. But land rights was always a prison designed to keep Aborigines as museum exhibits of a hunter-gathering culture which no one, who could choose an alternative, would today accept.”
Since the Mabo decision I have sought to hold non-indigenous Australians – and especially conservatives such as Howson who usually uphold our country’s British institutional inheritance – to the inescapable fact that Mabo was and is a product of the common law of England. Native title, properly understood, sprang from the common law’s predilection – nay, insistence – on respecting the possession of land arising from occupation by humans.
Conservatives such as Howson cannot deprecate Mabo without deprecating the common law. Or are they still saying that the common law of possession should be upheld in relation to the Crown’s subjects generally, but should not have applied for the benefit of native citizens?
In other words, is the conservative position just simply racial discrimination? You want the common law to be upheld to the non-indigenous heirs to Australia's British institutions, but you don't want it to apply to the natives?
It is far too late in the day for the kind of obscurantism exhibited by those conservatives who attacked the High Court for allegedly disfiguring the law under successive chief justices Anthony Mason and Gerard Brennan. The debate on Dixonian literalism and Denningite adventurism in judicial method is by now a transparent fig leaf. After all, the conservative High Court under chief justice Murray Gleeson has for long now affirmed Mabo. My allusion to the laws of England is not about desiring natives to become rent-expecting lords of their traditional lands, rather it is about conservative hypocrisy when it comes to the common law of native title.
Not all of the points made by Howson and other like commentators about the problems of rent-seeking and romantic ideas about returning to the classical past, are without foundation. Private ownership is a real issue for indigenous reform and development. Communal land tenure works for hunter-gatherer economies, but modern economies depend on private property rights. There is a clash between the cultural imperatives of communal tenure and the development imperatives of private tenure.
There are two groups holding extreme positions here. First, there are the conservatives such as Howson who believe that this clash is irreconcilable: communal land tenure must give way entirely to private tenure. Second, there are many defenders of land rights who still believe – against all of the learning and evidence about development – that wealth creation can occur within exclusively communal tenures (and communal social arrangements). The rest of us, including Prime Minister John Howard, hope that communal tenure and private tenure for wealth creation can be reconciled.
In May 2005 he told the reconciliation workshop at Old Parliament House: “We recognise the communal interest in and spiritual attachment to land is fundamental to indigenous culture … We support very strongly the notion of indigenous Australians desiring to turn their land into wealth for the benefit of their families. We recognise the cultural importance of communal ownership of land, and we are committed to protecting the rights of communal ownership and to ensure that indigenous land is preserved for future generations. And when I talk about land in this context let me make it clear that the Government does not seek to wind back or undermine native title or land rights.”
The paucity of compelling examples of this reconciliation of development and communal land tenure in the Australian context does put the burden on those who believe they can be reconciled. There has been a near-complete abrogation on the part of those who advocate indigenous rights to rise to the intellectual and policy challenges posed by this clash between an ancient economy communalism and modern economy liberalism – in relation to indigenous land tenure and social arrangements – so that cultural maintenance and development can both ensue. So the debate on home ownership on Aboriginal land remains juvenile, because those concerned to preserve communal land tenure have not developed better solutions to how it is that families and individuals can have a private stake in their homes and businesses. If there are better ways to effect this reconciliation than those advocated by Indigenous Affairs Minister Mal Brough, they need to be put forward. But don’t tell me that exclusively communal housing can still work, for God's sake.
Australia’s greatest ethnographer, W.E.H. (Bill) Stanner, wrote in an unpublished note in the latter part of his life: “The ‘Aboriginal problem” goes beyond the ‘retention of their traditional lifestyle’: there is a problem of development as well as one of preservation.”
It is this problem of development that progressives have, by and large, failed to confront. Until we show that private and communal land tenure can underpin indigenous development, Howson and company will insist on their agnosticism.
I await the day when 91 per cent of the Australian people come to accept the modest but profound achievement and meaning of Mabo, just as they did in respect of that other modest but profound achievement of 1967: our full inclusion in the nation's citizenship.
The 1967 referendum represented the Australian people's acceptance of our united citizenship of Australia. Mabo recognised the unique status of indigenous Australians as the original peoples of the land and the rights (to land and heritage) that flowed from that status. There must come a day when the question of our status and rights as an indigenous people – consistent with our united citizenship – is put to the Australian people for their acceptance. Elders such as Howson, and those who follow them, will need to be convinced of this consistency if we are going to get 91 per cent of the country behind the meaning of Mabo.