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Land rights – sand castle in a wind storm

When I am asked about the land rights struggle in this country, I often liken the struggle to trying to build a sandcastle in a wind storm and how – even when we get some foundational structure – in comes the government to knock it down.

The struggle for land rights has been a long one and one that has been hard fought and continues to me so. One of the most pivotal protest chants is “what do we want? Land Rights. When do we want them? Now!” and this continues during protests to this day.

Why? Because the struggle continues.

Every step in the direction of meaningful reform to address the issue of theft of this land is then countered through government legislation and this mean spirited response to every small victory we have has become emblematic of the Australian government.

There are no shortage of examples of this greedy entitlement, but perhaps one of the most disgraceful examples is the government response to the case of The Wik Peoples v The State of Queensland in which, on this day in 1997, it announced its ’10 point plan.’

The Wik case was an incredibly important one – not solely for the cultural importance of the Wik peoples being recognised – but it was also important from a legal perspective in considering the discreet point of law regarding extinguishment because there had been so many cases where lands were being leased without regard to Indigenous people.

In summary, for those not across the detail of this case, the High Court rightly determined that the mere grant of a pastoral lease does not necessarily extinguish any remaining native title rights. The High Court stopped short of stating that the leases were extinguished. They determined that if there was a conflict of rights, the native title holders came off second best. If there was no conflict, the rights of each co-exist.

So while it was a moral victory in the sense that the High Court did acknowledge the Wik peoples’ rights were not extinguished by the mere presence of a lease, it was not a significant legal victory as it did not espouse any fundamental presence of land rights under the invading legal system.

Despite this nuanced legal decision, the government and its ‘biggest constituents’ – farming and mining – scrambling for control.  They set about on a propaganda campaign that vilified Aboriginal people and the response was devastating as reactionary behaviour showed the true nature of the greedy capitalist.

At all times the Wik people conducted themselves with dignity. They used the colonial legal structures to affirm what was known at a cultural level in order to make the government see and understand that the Indigenous peoples of this country are not interested in land grab or commoditisation of land – we want the non-Indigenous community to understand the responsibility of caring for the land, of belonging to it and maintaining the synergistic relationship which gives life to our cultural, communities and ceremonies.

Instead, the government set out on a deliberate campaign to mislead the ‘mainstream’ as they termed everyone other than Indigenous people. The Deputy Prime Minister, Tim Fisher, and Queensland Premier, Rob Bobridge, made claims that the High Court decision went beyond their duties and attacked the High Court for purported “judicial activism” against mainstream interests. Freshly elected Howard government went into battle for the ‘mainstream’ and forged ahead with their 10 point plan to amend the Native Title Act – a plan which led to one of the longest debates in the Australian Senate’s history.

The reason for the outcry from the political heavyweights was not the decision itself because the cost was nought. It was no great victory for Indigenous people, it was no civil rights victory, but merely a decision that the grant of a pastoral lease did not necessarily extinguish Native Title and in fact, would extinguish Native Title to the extent of any inconsistency. There was no loss in a capitalist sense, but this was an extraordinary loss of face for the government who were used to being in the driver’s seat steering public opinion with respect to Indigenous people. The Indigenous people using the system in this manner for a moral victory with no interest in finance did not fit the narrative being pedalled since invasion.

Howard and his cohort spoke about the government fighting for the mainstream and trying to to protect ‘land owners.’ Yes – he said that. He then announced the Wik 10 point plan with full support from the ‘mainstream’ public who believed the nonsense being circulated by the government and media that had no factual or legal basis.

The Wik 10 point plan undermined the nature of the native title legislation enacted under the Keating government. Although imperfect, the intent of the Keating enacted native title legislation was to confer a benefit whereas the Howard 10 point plan cut across this and acted more as a sanction or tool to extinguish.

In fact, those within the ranks of the Howard government were spruiking that the 10 point plan would bring ‘bucketloads of extinguishment’ with the intent to undermine Indigenous people apparent from the outset.

Mick Dodson said at the time, ”By purporting to ‘confirm’ extinguishment by inconsistent grants, the Commonwealth is purposely pre-empting the development of the common law – not allowing sufficient time to integrate the belated recognition of native title into Australia’s land management system. This does not require the obliteration of indigenous interests so as to favour non-indigenous interests.”

Exactly! And yet, they did it any way. They set about to obliterate the chances of native title claims for so many by ensuring inconsistency and ‘fixing’ the laws to make it so and this has been the devastation we have been trying to claw back from since.

This behaviour from Howard, he has since reflected upon and said that he could have handled better but that it had ‘unnerved us’ and ‘I don’t think I handled that next six months all that well.’

Understatement – but important when you consider this is about as close to a mea culpa as you could get from a man famous for refusing to apologise and digging his heels in. So as Howard spent many years undermining us and teaching his successors how to do the same, we know our fight continues.

The Wik 10 point plan set us back, demonstrated the lengths that the power structures in this country will go to in order to ensure that their power remains along with our oppression. What they didn’t count on was that this serves only to solidify our resolve to keep going.

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