Tape #324 - Land Ownership

 

My name is Tamora Downy I'm currently teaching English-as-a-second-language to Asian students at a college in the city of Melbourne.  Which has little direct connection as such with women in agriculture.  But as an Australian passionate about the continent I was more than happy to make these presentations to the conference.  This is my second visit to the United States having gained my master's degree from Montclair State University in New Jersey last year.  That degree is in education and trained to me in the facilitation of philosophical dialogue.  And also identifying the philosophical issues which underlie human communication.  And essentially that's what I'll be talking about today.  So, the title of the presentation is What Does It Mean to Own Land, Philosophy Makes Practicality in Rural Australia.  The concept of land ownership is quite a broad one.  And my interest in it coming from Australia where a current debate is quite complex is quite a broad and deep at the same time.  What I'm hoping this session offers you is ways of thinking about land ownership, considering what's happening in Australia at the moment.  To put it another way through this presentation and discussion afterward, my idea is to shine the light of land ownership through an Australian prism such that the refracted light can be what we see at decision.  I'm not a land owner myself.  As that term is generally understood in Australian culture.  Which immediately poses the question, what does it mean to own land?  To have paid for it.  To be allowed to alter it.  To be responsible for it.  In Australia and or anywhere and everywhere else these questions are faced by women when they can see the relationship between ownership and agricultural practice in so far as how does ones ownership of the land in whatever sense, effect one's working of that land.  By looking at the ways of, and forgive me I am nervous, two cultures in Australia, average land people, and the people of predominately Anglo-Celtic heritage, think differently about land ownership.  I hope to bring to light a positive approach to land ownership, where and when, what' s appears to be the barrier of cultural conflict exists.  You'll tell me afterward how closely this resignates with your own situations.  And please note any questions, I intent this paper to be a stimulus for discussion rather than a presentation of an experts perspective.  Coexistence is a model of land ownership in Australia whereby people from different cultures enhance people holding differing conceptions of land ownership occupy the same land or be it in different ways.  Some farm it, some hunt and camp on it for example.  Coexistence is a one way that the two groups are negotiating, managing and balancing their different needs. And it's this model I'm presenting for your consideration today, since it was a women in agriculture Camilla Calle who in 1997 formed a network called Rural Landholder for Coexistence.  Coexistence isn't a radical new idea. Given that indigenous and nonindigenous people have been living in some of the same areas since the initial contact, conflict, and cultural destruction following what settlement in 1788.  What is new and what I think women especially bring to coexistence as a positive, active, and practical way of living together is a recognition of the need for dialogue, the skills of communication, and ability find a way that works.  In a moment, I'll present historical, legal, and social background to coexistence.  But firstly about a meeting with average needs of the Gungary Tribe in Southwest Queens where Camilla and her husband have a nine-thousand hick deer sheep station, she says, what country so clearly that day was what the land meant to them.  Referring to the Gungary's inherent need to resumlings with their traditional home without in any way impinging on us.  All that was needed was trust.  And that quite by the way comes from Who Magazine's Beautiful People, '98.  And Mrs. Calle was one of the twenty-five listed there.  So, we live in hope.  The background to coexistence in Australia.  Possession is nine-tenths of the law.  So goes the old saying.  But who's law, what happens when systems of law collide?  What happened on the Australian continent was that legal system, namely the British one, prevailed when it arrived with the British colonizers in 18th Century and the people for whom the system had operated since their arrival approximately 60,000 years previously, namely the Australian aborigines were dispossessed until 1992.  And I want to make explicit my weariness of over simplifying this history, but I'm also aware that people from the, you know, I'm talking to people from other countries where that's not so appropriate.  So, I just hope that everyone can relate to it at some point.  Back to 1992, In the Marbo Decision the High Court held that the common law of Australia recognizes of form of native title to land.  The court rejected the doctrine that Australia was terranolius, which meant land belonging to no one, or no one's property, at the time of European settlement.  Pre-existing rights to land survived colonization and still survive today in certain circumstances.  The High Court didn't discover a new form of title, it recognized property rights which Aborigines and tourister straight islander people have always possessed.  More about native title presently but, what the Marbo decision did and continues to do is think about land ownership.  If there are traditional owners as the High Court ruled, where does that leave non-traditional owners and what is the relationship between the two.  This may not be considered ground breaking in other countries where trade between indigenous and non-indigenous peoples have been in existence for quite sometime.  But quote Calle again, she says, I believe that we've been given this once in two hundred and ten year chance to change the whole direction that Australia has taken and make the choice to go somewhere different.  Coexistence is both the sign post and the direction, the road under foot, and the destination hopefully.  It was Eddie Marbo who had the Australian legal system to recognize his right and that of his people to his land.  Professor Henry Reynolds whose researching to Australian history provided source material to the Marbo judgement has his work discussed as follows, and I quote, "The pair also talked about the law of the land."  Marbo regarded as an agitator by the Belkey Peterson government had been refused permission to return to his island home.  Marbo was adamant that he owned land there, Reynolds and a colleague, explained to him that no, it belonged to the Crown.  And Crown is like the British Crown, Crown land is like government land, belonging to the Commonwealth of Australia.  He stared at us for a long time, recalls Reynolds, he couldn't believe it, he was horrified.  And the question I ask, is what's it like to told land that you thought and believed is yours, actually might not be. And that's something that we're trying to come to grips with in Australia at the moment.  For land owners to return to some of the questions that I asked at the beginning of the paper.  To feel proud of it, to feel a spiritual connection with it, and what do we mean when we say the word "yours."  Again, I don't ask these questions out of antagonism but out of an attempt to get at the different levels of ownership different people may have about the same land.  And also to as an attempt to compare and contrast our own cultural perspectives on land ownership with other perspectives.  And I'd like to think that women are particularly good at putting themselves in other people's shoes.  It's was Marbo's out of faith he owned land according to his belief system which resulted in the historic development of native title legislation in Australia.  The court's rejection of Terranolius was informed by the word of Henry Reynolds.  And I quote again, "Reynolds had a hunch, surely he thought the colonists have but an iggling discomfort that Australia had been settled on the basis of terranolius.  That is, that it belonged to no one.  And surely this would have found a voice in official policy at some point, possibly during the relatively enlargement 1830s, when slavery was abolished.  After months on end, he found confirmation that British at some stage recognized indigenous ownership of the land.  And it was in an 1836 missive from the colonial office in London to a settler's body the South Australian Commission.  The commissioners were to compare a plan for securing the rights of aborigines including arrangements for purchasing the land of the natives.  That was the kind of evidence that was used in the Marbo case, but the principle to underline the legal arguments are worth examining from a philosophical point-of-view in order to assist our exploration of what it means to own land.  As Patrick Wolf explains, thus we need to understand what was meant by the term property.  And I'd like to add that my emphasis on the legal aspect of ownership comes not only from my own educational background but from the reality of the social structure under which we live.  And I'll contrast with what we know aboriginal conceptions of ownership a bit later on.  Wolf says for the 18th Century European legal theorists who framed the concepts of Terranolius and native title.  Property rights were sent result from owners applying labor to land to improve it, which is to say to make it a more efficient supporter of human beings than it would have been if left in it's natural state.  The doctrine of terranolius provided that two basic criteria had to apply for natives to have property rights recognized in their land and both depended on the judgement of Europeans.  First the natives should've mixed their labor with the land to improve it, and in practical terms this meant that they should have irrigated, planted crops, fenced and so on.  Second, the natives had to have a legitimate centralized system of laws, to insure that those who had worked to improve the land could enjoy the fruits of their labor without hinderance.  Practically this meant that the boundaries between individual holdings should be marked, acknowledged, and publicly sanctioned.  If either of those conditions did not apply, in other words, if the natives were judged not to improve the land, or to have a regular system of property laws, than terranolius applied since no one owned the land it was there for the taking without any requirement for purchase or compensation.  If on the other hand, the two criteria were held to apply, in the case of the given native society, than native title was to be recognized.  This did not mean that Europeans were prevented from invading, it merely meant that they should first attempt to agree terms with the natives and if this were not possible and the Europeans were obliged to invade than the natives would become entitled to compensation.  The consequences of the arrival of the British in Australia and the subsequent disposition of  aboriginal people from their traditional lands follow us to this present day but we can't go back.  As the national indigenous working group on native titles state in their position paper, coexistence, negotiation, and certainty one of key principles as we move into a future of what will hopefully be a resolution of title native issues must be: respect for the property rights of all title holders, including native title holders on a non-discriminatory basis.  And this is what's gets me.  Like all complex issues there are many variables involved.  And since people on both sides of  the boat scream about equality it is worth restating the historic commitment by the Australian Parliament on the motion of the Prime Minister thirty of October 1996.  And he said, this parliament reaffirms it's commitment to the right of all Australians to enjoy equal rights and be treated with equal respect regardless of race, color creed, or origin.  Just what this means in practice, or putting this fine statement into practice is the task ahead for all of us.  By contrast aboriginal conceptions of land ownership can be seen generally speaking to consist not so much as people owning land as land owning people.  This can be illustrated as follows:  two aboriginal people are talking about their moves, when one says she is moving in a certain direction, the other says no, you belong to Danetree, and the Danetree is an area of tropical rain forests in North Queensland, people born and raised in that country are owned by that area according to Aboriginal culture.  I was told that traditionally when a baby was born to the Guigilengi people of North Queensland it's umbilical cord was hung in a tree to make physical the connection between person and country.  Much of aboriginal culture today is not traditional but the yearning to find one's place is still strong despite the loss of traditional custom.  It is often said that the aboriginal people did not own the land rather it owned them.  Often and more ____ people speak of the land as mother.  And Eric Dearel who is a friend of mine from Crooktown, in far off Queensland puts it this way, for Aboriginal people mother earth is like your own child sort of, your own blood sorta of, your own friend sort of, you never get rid of it.  David Reiter whose a lawyer in the Native Title Department at Gaden, Solecitors, and Perth puts it another way, and he says, land ownership involved not just the right to exploit country but involved the obligation to conduct ceremonies on country and in general obligations to country.  And I'm quoting here, "It was not simply  matter of the way I think non-indigenous people have tended to look at the world, as in that's our and we can do what we like with it, instead it was a matter of that is ours but we're also a part of it, we belong to it.  Is that alright so far, has anyone got any questions?

 

[Comment are being made, they are inaudible]

 

Let's move on.  Please, I know just how contentious and the range of opinions there are on this and where I'm coming from is that philosophical basis of what does it mean to own land.

 

Following the Marbo Decision, the Cading Government drafted legislation to provide a means of the recognition of claims to native title, and to govern how other land users could relate to native title claimants.  Under this act, Aboriginal groups who could demonstrate that they had what is called continuing association with their land could have their native title to it recognized so as it was unalienated crown land.  That is as long as it was land that had never been sold to anyone else.  It is the position of Australian common law that while native title may have existed over the whole Continent in 1788 that is not the case today.  In some areas native title has survived while in others it has been lost or removed by an act of government.  Native title is extinguished, removed by valid grants of free hold land and thus can not displace the validly granted rights of other land, water owners and users. Importantly, native title may coexist with other rights and may continue to exist on vacant crown land.  Some leasehold, state forests, national parks, public reserves, land held by government agencies, land held in trust for original communities, beaches or offshores, lakes, rivers, creeks, oceans, seas, and riffs.  The Native Title Act 1993 was clear with respect to crown land and free hold land, but unclear as to whether the issue of a pastoral lease extinguished native title.  The answer to that question lay in whether the crown had intended to grant exclusive position to the pastoral lease holder when it issued the lease.  And as I understand it a pastoral lease generally allows the use of crown land for pastoral and other related purposes.  Pastoral purposes include raising livestock, establishing fences, boards and accommodation.  A pastoralist rights are set out in the lease and relevant statute which may differ from state to state.  For instance, in Western Australia, a pastoralist doesn't have general rights to soil and timber on the lease land but can use these resources for roads, buildings and other improvements on the land consistent with the purposes of the lease.  Again, I'll pause here to just to ask you to bare with me.  I think the very complexity of it is raising to work toward coexistence.  In 1996 the full bench of the High Court handed down another historic decision in the Wick Case. And the Wick people are the people of Varacoon on the West Coast of Cape York.  For non-Australians that the pointy bit on the east side.  In Wick a majority of the High Court held that the granting of a pastoral lease did not necessarily extinguish all native title rights.  Because firstly, the statutes creating pastorial leases in Queensland did not reveal an intention to extinguish native title.  Secondly, pastorial leases did not give exclusive possession to pastorialists.  And thirdly, native title rights could continue at the same time that the land was subject to a pastorial lease.  That is there was no necessary inconsistency, where there is no inconsistency between the rights and interests of native title holders and those of pastorial lease holders, the two sets of rights may coexist.  Where the two conflict the Wick Decision clearly states that native title rights are subordinate to those of the pastorial lease holder.  Now this decision caused enormous consternation among pastorialists because they believed that the issue of their land had necessarily extinguished native title.  The issue is complicated by the fact that the terms of the pastorial lease vary from state to state and even within states different rights may have been granted under the general heading of pastorial lease.  It was the intention of the government in the issuing of some of these to grant exclusive possession but not in all.  So, the High Court determined that question where the native title remained on a particular pastorial lease would have to be determined in the court case by case.  The National Native Title Tribunal acts as a mediator for native title claims, but does not have the power of the court to make a ruling.  If mediation fails, the federal court decides, and in the past four years, the tribunal has dealt with 106 claims.  Of those almost three quarters were withdrawn by applicants, or rejected by the Tribunal, about a quarter of the claims have been sent onto the federal court for legal binding ruling, and only two have been settled by the Tribunal and there are another six hundred and seventy to go.  The Howard government has attempted to clarify the situation by preparing a ten point plan.  And has presented this plan to the parliament as legislation in the form of amendments to the Native Title Act.  The plan is controversial to say the least.  Rick Farley former head of the National Farmers Federation, now a mediator with the National Native Title Tribunal, said _______, there's a hell of allot of misinformation and disinformation out there in the community, and it's on both sides.  I mean, I've talked to white pastorialists who believe they can be thrown off their property by native title claimants, demonstratibly incorrect.  Equally I've been in circumstances where aboriginal people have said to white pastorialists, we're going to get your property.  The current situation is such that Australia is faced with an election that some are calling a race based election.  In the event the amended Wick Bill is not passed by parliament.  The main sticking point in this _____ legislation is the right to negotiate.  The government insists that the right to negotiate can not be included in the legislation because it would give native title claimants rights that pastorialists do not enjoy.  The opponents of the amended legislation insists native titles have a right to negotiate over development of native title land.  Into women in agriculture.  Since the Wick Decision, there has been considerable public debate and political point scoring over the merits both for and against native title with rural land owners for coexistence believing that much of this political point scoring has been conducted without any real concern for those are on the ground and most directly affected obviously pastorialists, farmers, and aboriginal people.  Such tactics have served to deepen rather than resolve.  Tensions between black and white people Australians in the bush.  People like Camilla Calle, however, believe the best outcome to the questions raised by the Wick Decision will come from dialogue between Graziers and Aberiginal people starting from a basis of respect for everybody rights.  And I'm not here as a spokes person for rural land holders for coexistence but to tell you dialogue is occurring.  As I said earlier, that organization was launched in November of 1997, in recognition that much of the information made available to people in the bush about native title was at least misleading, at most, untrue.  And consequently it seeks to provide a point of contact for those who believe in the principles of coexistence but don't know where to get accurate and practical information about how to make this work.  At present it's a loose network of about thirty to forty land holders and this year launched an initiative called common ground to reach into areas of  Australia which are largely covered by pastorial lease.  The common ground initiative has two aspects, first the seminar tour of Australia which the meetings are small, have a very practical focus and provide an opportunity for the dissemination of information about the nature and benefits of negotiated agreements.  Secondly, there's a national workshop on August the 1st and 2nd, in Charges Towers, which will bring together a large grouping of farmers, pastorialists, aberiginal people, and people with the most experience in negotiating Aber land use.  The person who best knows what impact access by traditional owners to a property will have over pastorial enterprise is the pastorialist him or herself.  The people that are best able to describe the aspirations of the traditional owner are the traditional owners themselves.  Through dialogue practical concerns like frequency of access, use of road, gates, ____, removal of rubbish, and heritage protection can be resolved.  Bood and Bloseeksan have a 5,000 hectare property in Queensland.  Over which a native title claim was lodged by the Greenville people.  Mr. Hickson said, not all pasturialists supported what they were doing, but the majority didn't want full extinguishment of native title.  He says, we have to live with one another regardless of what the politicians decide.  They can either make it easier or harder but negotiated agreements will give certainty to pasturalists.  Aside from the obvious benefits for land holders of moving closer to resolving issues of uncertainty.  Land holders are also seeing opportunities for collaboration.  And Hickson said, that one of grass roots negoiation was that indigenous people wanted to return to their land help run it at a time when many Austrslians wanted to leave it.  Beyond agreements pertaining to single leases, alliances can be built between land holders and Aberigenial people to promote regional, economic, and social development.  The historic outcome of the Cape York heads of agreement is a prime example.  Sharon Claden of Rural Land Holder for Coexistence says people of good will say that they don't get much encouragement in the current political and legal climate to come together and work out a solution.  People feel overwhelmed by the legal competitiveness of native title.  We thought we had to put that to one side and try to work out something that suits us.  Pasturalists and Aberigenal people are coming together all around the country very quietly keeping away from lawyers and politicans.  This voluntary approach does not immunize leaseholders from the official native title process under the current legislation, however it does help provide leaseholders with a greater understanding of the process, can contribute to resolution of the indigenous people conflicting or overlapping claims, and will certainly allow the fees many people have about native title.  Real communication is taking place away from the powers that be.  Mediation may not be the be all to end all, but by recognizing specific needs through dialogue, clarify ideas, identifying wants, even if people find themselves having to go through the litigation process down the track, they will at least be clearer about such issues.  Another benefit is that different levels of ownership emerge from the discussion process, be they legal, spiritual, financial, custodial and we could probably go on and on by identifying those levels.  There may not necessarily be a conflict between these levels as illustrated by David Reiter and Michael Solomon whose law firm strives for a co-cultural approach, sometimes representing indigenous Australians and sometimes resource and pastural interests, seeing no contradiction in this.  Reiter says, there are so many generalizations about this area of law, you have these fees that because a native title claim has been lodged, it means that aboriginal people are move in and be given full free hold title.  That's simply not true.  I guess this is kind of a repetition of what I was saying earlier about the case by case basis because it depends on, well lots of factors.  You've got that, and than he gives an example, there's a wonderful example sometime ago, of the claim that was lodged in the eastern states, where once you stripped away all the legal expressions, essentially all that was left was a right that was being claimed to hunter's single spaces of animal.  And that was all it boiled down to. You really can native title in some instances stripped back to nothing more than the right to traverse.  Or in some instances it's a right to full beneficial title, it just depends.  Finding ways forward.  At the first International Conference for Women in Agriculture I was struck by the tremendous energy which flowed.  Four years later, I find myself addressing the conference with what is probably the most significant issue in Australia, certainly in terms of race relationships, if not other issues, such as identity and fairness.  I as write, and I've tried to find out if anything has happened with Harridane, but I don't think so, I think it's still unknown.  As I write the independent Senator who holds the balance of power in the Federal Parliament is faced with the choice of not passing the government's amended Wick Bill and consequently triggering a national election, or passing the bill and essentially removing aboriginals right to negotiate over their land and their future.  Damned if he does, damned if he doesn't.  By a focus in this discussion on the critical importance of this negotiation for it seems to me that if we are to find ways forward dialogue is the only answer.  To completely overstate the case, politicans are interested in power, lawyers in money, and beaurocrats in their jobs.  But as women who are interested, and usually vitally interested, in community and communication.  Of course we're part of the people who work in this part of coexistence that's a positive approach to land ownership at the local level.  Negotiating agreements in which the native agriculture are balanced with the traditional owners.  But I think the complexity and subtlety of the different layers and levels of ownership present in the debate require a mix of perception and cultural sensitivity in order that negotiation takes place.  In Melbourne three women are working on a project called Towards Common Ground which will see the production of an information kit to help individuals and groups start talking together about issues such as native title and race relations.  There aim is to send it around Australia where it can become a resource for local people.  After a meeting last year at which a group of 24 mediators from across the country came together, the institutes believe in the power of possibility of negotiation has already has positive results.  According to coordinator Narida Wallace, we Australians have a history of being able to sort out our problems through learning, discussing, debating, and giving the other side a fair go.  She adds, besides these strengths, we have in recent years since the growth of people, who've been able to help individuals in groups, small and large, to resolve conflicts, to avoid fights, and to  save their communities bitter and expensive disputes.  Sitting around and sorting out problems is a powerful and strong thing to do.  And according to The International Institute of Negotiation and Conflict Management says Wick is one of the most contentious issues in this country, at the same time Australia has one of the best developed dispute industries in the world.  So what else can we do.  There are ways forward.  There is a broad social movement of recconsiliation between black and white Australians which I would hope to the divisiveness which is also part of our society.  The simple group in Australian society is farmers have the most access and the greatest knowledge of large tracks of land once occupied and traversed by Aberigenis and so the efforts of groups like rural land holders for coexistence can only be seen as positive to bring people together to talk common ground.  So what does it mean to own land?  What we know is that meaning differs.  And you can probably argue is unique to each individual.  And we're not going agree.  And we'll never agree completely.  And why should we?  But I think we may as well talk about it.  Thank you.

 

And according to the way we work today, I think there's about ten minutes of questions.

 

Statement:  Well my concern is that some of the perceptions that you have presented today have another dimension to them and I just think that this audience ought to know what those other dimensions are, so that when they ask questions they ask them from the basis of knowing exactly the position than one dimension of it.  I just believe that some of the presentation that you have made today, has been from a single perspective and not from the perspective of some of the people in this room, and some of the people who've given evidence to the committee of which I'm a member about what it means to own land.  Do you have a problem with that?  Does anybody in here have a problem with that?  Well I think it's important first of all to say that the Marbo Claim which was found to be upheld in High Court refers to an island in the Torres Straight, further to New Guinea than in fact to Australia.  I think I made it clear, well I hope it clear, during the paper and one point when a question was asked, that I'm arguing for or against... Well, I'm not sure that this is appropriate.  I'm happy to discuss it.  What I was trying to get at was ownership and way that different people think differently about ownership.  And it's impossible to be objective.  I just think it's important to understand that on the Island of Muir which I've been fortunate enough to visit.  Land ownership is very clearly defined.  And I've seen Eddie Marbo property.  It is very clearly defined.  It's much more difficult to define areas in a physical sense and not a spiritual sense on the mainland of Australia because of the nomadic nature of the Aberigenial communities that once lived there.  I'd just like to make the point, that of the 700 claims that the Native Tribunal has lodged, in fact the two that have been negotiated, were not negotiated as part of the Native Title Act, they have been negotiated outside of the act and have involved a good deal of cash in response to a surrending of the title.  And so, when you talk about the success of the Native Title Act, I think that it's important to understand, that it hasn't delivered native title on mainland Australia as yet.  They have been negotiated agreements as a result of the process and not the tribunal prices.  I just wanted to make a final point, and that is the point about our South Australian Pastoral Act which is the state that has the best history in relation to access for indigenous communities, and that is 100 years ago when our pastoral leases were developed there was, in fact, access given for all of the things that are now considered native title rights, that is traversing the country, camping, fishing, hunting, and so on.  We still have all those rights on all of our 400 odd pastoral leases, unlike some of the other states that don't have them.  However, about two-thirds of South Australia's pastoral leases are still under native title claim, at this point in time nobody really knows what native title is.  I think that's a very important point in relation to land ownership.  And given that there are native title claims on what was previously considered to be land that offered access to the original inhabitants of the land.  I have pursued with some interest because I am involved in this issue of land ownership what in fact native title means, in addition to the what we call access rights on the South Australian leases and they are the right to negotiate. That is what has been told to the Senate Committee involves the issue of land ownership in South Australia as distinct from what has been previously considered to be native title rights.  I'm just on my last sentence.  I'd be very interested to a response.  The right to negotiate was not a right that was part Marbo High Court judgement, it is a right that was put into the 1993 Act.  And I'd be very interested how the right to negotiate fits into land ownership for indigenous communities. 

 

I'm very conscious that time may cut short my response.  I'm pleased that I have an opportunity to give an indigenous view of such a topical piece of legislation and bill that's passed in my country, in Australia.  My name is Stephanie Arnn, my married name is Dowd.  [End of tape.]