TERRA NULLIUS - and yet another venting in response to an incredibly dense individual

SHILO HARRISON has written an impressive and well constructed article that should be read widely. The article signifies and identifies origins of thinking, inter generational premises, biases, prejudices and various attitudes and explains factual realities verse assumptions, and implications and imputations. Posted, by Gerry Georgatos.

Terra Nullius - and yet another venting in response to an incredibly dense individual
by Shilo Harrison on Friday, April 1, 2011 at 10:15am.New Terminology Does Not Make the Impossible Possible

In 1992, the determination of the Mer Islander peoples vs. Queensland High Court (Mabo) case had massive implications for Indigenous land rights across Australia. Two immediate results of the Mabo case were a) Terra Nullius (Latin for land belonging to no one) finally being rejected as grounds to refute Indigenous claims to homelands and b) the inclusion of native title into Australian common law. With the Mabo case, the High Court of Australia effectively quashed the legal validity of the term Terra Nullius; it did not however remove the doctrine from which it was borne. Doctrine is defined as a principle…that is taught or advocated. The doctrine, which created the legal validity of the term Terra Nullius, is one of advancing capitalist pursuits at the expense of the First Peoples of Australia's (in particular) rights to lands. In light of comments made by Justice Olney in the Yorta Yorta native title case (2002), that the tide of history had extinguished Yorta Yorta native title rights, it is a fair statement that “Terra Nullius” and “tide of history” are different terms yet they equate the same action and are powered by the same doctrine.

Terra Nullius was first applied to Australia with the arrival of the British, in 1788, and was used to dislocate the First Peoples of Australia from their lands, until the historic Mabo case, some two hundred years after the arrival of the British. The notion of Terra Nullius operates on the premise that 1) a land has no sovereign (socio-political and economic structure) and 2) a land has no apparent land tenure.

Clearly, those declaring Australia Terra Nullius knew they were being deceitful and their motives are clear; they wanted to claim the land for Britain and alleviate the pressures of a tired and overcrowded nation. Despite Australia as Terra Nullius being obviously untrue, it proceeded to form the basis of the Australian legal system and provide the framework for Australian Indigenous rights to land.

Among those to suffer due to the legal application of Terra Nullius were the Yolngu peoples of Yirrkala, the traditional owners of the Gove Peninsular in Arnhem Land. In 1963 the Federal government, without consulting the Yolngu, allowed the provision of a twelve year bauxite mining lease to the Nabalco Pty Ltd in Yolngu homelands, what resulted was the first land rights case in Australian history. The case, Milirrupum vs. Nabalco Pty Ltd and the Commonwealth of Australia, commenced in 1970, one year later, the findings were handed down with Terra Nullius being provided as due cause to find in favour of Nabalco Pty Ltd and the Commonwealth of Australia.

The ruling Justice Blackburn also asserted that it was impossible for the Yolngu to claim native title because it was absent in the Australian legal system, and that any preexisting rights that the Yolngu exercised were inconsequential. So being because of the Crown being the absolute owner in demesne of all unalienated lands, there is no room for any doctrine of communal native title. (Partington) Ultimately, the capitalist pursuits of the Australian government persevered with Nabalco beginning bauxite mining without any further consideration of the Yolngu peoples concerns.

Another victim of the pro-capitalist doctrine, of the Australian legal system, are the Yorta Yorta peoples of Victoria; their native title claim was unsuccessful due to Terra Nullius like rhetoric and ludicrous evidence. The evidence Justice Olney permitted, in the case of Yorta Yorta vs. State of Victoria and Ors (2002), is questionable in the least, and it raises genuine concerns about native title in Victoria and the true legal progress achieved by the Mabo case.

Throughout the court proceedings, Justice Olney’s bias was clear, he placed more weight upon the State’s evidence than the oral evidence provided by Yorta Yorta witnesses. One of the (many) dumbfounding aspects of the case was the acceptance of Edward Curr’s book Recollections of Squatting in Victoria, (1883) as legal and ‘significant’ evidence.

Curr was a vocal promoter of relocating Australian Indigenous peoples onto missions and reserves, and through this process he acquired his own wealth...yet his diary is evidence????

This act by Olney completely disregarded the historical truth of Australia’s ‘colonization’ and was a deplorable lack of acknowledgement that Curr’s ‘evidence’ was subjective, blatantly racist and written by a man who gained from and advocated the forced acquisition of Yorta Yorta land.

The inclusion of native title into Australian common law was highly significant, yet the outcomes of native title claims are unpredictable and the process involved for the First Peoples of Australia to claim native title is problematic and virtually impossible for those groups who have been most affected by Australia’s ‘colonization’. For any Australian Indigenous group to claim native title they must provide specific legal evidence, which in many cases is impossible to do due to the past actions of the Australian government and settlers and the Anglo Saxon bias existing within the Australian legal system.

The evidence Indigenous groups must provide to the court are cultural evidence, genealogical evidence and historical evidence. Cultural evidence involves demonstrating social structures, cosmological beliefs, spoken language(s), practices and ceremonies that are unchanged from that of the ancestors. The rules, which define cultural evidence valid or invalid, fail to acknowledge that colonization changed all Australian Indigenous cultures and regardless, no culture is static. The extent to which Australian Indigenous cultures were affected by colonization varies due to factors of location and time.

Those most affected by dispossession of lands and denial of identity are also those who cannot possibly fulfill the High Court’s requirements for claiming native title, and this is unacceptable. This view is shared by the United Nations Committee on the Elimination of Racial Discrimination which stated, in 2005, The Committee is concerned about information according to which proof of continuous observance and acknowledgement of the laws and customs of indigenous peoples since the British acquisition of sovereignty over Australia is required to establish elements in the statutory definition of native title under the Native Title Act. The high standard of proof required is reported to have the consequence that many indigenous peoples are unable to obtain recognition of their relationship with their traditional lands. (Australian Human Rights Commission, 2007, section 12, para. 2)

The legal genealogical evidence native title claimants must provide is a direct ancestral lineage between themselves and the original inhabitants of the lands they are claiming. The provision of genealogical evidence is challenging to say the least. A shared practice of all Australian Indigenous peoples is to follow certain protocols when a death occurs; the name of the deceased person is never to be said or their picture to be displayed, it is a cultural taboo. In consideration of that cultural fact, how then direct lineage, dating back to ancestors, be provided? As with all Indigenous cultures, the First Peoples of Australia do not have a written language, so how is it possible for Indigenous groups to provide a record of direct ancestral lineage? Another issue that causes challenges with providing genealogical evidence is the sporadic, incorrect or non-existent record keeping that detailed the ancestral heritage of the First Peoples of Australia.

Sporadic and incorrect record keeping also raises valid concerns in regards to historical evidence. Historical evidence in a native title claim is used to prove, or disprove, that the claimant group have continued to reside on and use the land(s) being claimed. As such, 'settler' accounts are relied upon in court to provide historical evidence. Settler accounts may be useful to a certain extent, but only in specific instances and not without critical assessment. It cannot be forgotten that the settler mentality was one of their cultural, evolutionary and intellectual superiority over the First Peoples of Australia. These settlers murdered Indigenous Australian peoples, denied them as human beings and stole their lands. It is unjust to deny that many (if not all) settler accounts are racist, incorrect (either deliberately or not), and written in such a manner that ensured their own desires were met and their actions validated.

A transition has occurred from land belonging to no one (Terra Nullius) to peoples belonging to nothing. In 2010, (nor at any time really), it is unacceptable for Australian institutions and citizens to be ignorant of the lived realities of countless generations of Australian Indigenous peoples. The First Peoples of Australia have suffered heinous acts since the arrival of the British. The First Peoples of Australia have been bombarded with attempts to obliterate their cultures, their identities and their rights as human beings since the time of British arrival. Government legislations and individuals’ actions have forcefully removed Indigenous Australians from their lands, to be relocated to missions or reserves that violently prohibited retention of cultural identities. Thousands of children were stolen from their families and today, in 2010, there is to be a referendum that will decide whether Australian Indigenous Peoples will be included in the Australian constitution! (Kelly & Massola, 2010)

How is it acceptable to ask for genealogical, cultural and historical evidence when past acts have deliberately attempted to sever the First Peoples of Australia's connections with their families, cultures and histories? As an Australian, this is truly embarrassing for myself but also for this nation on the international stage, and it is saddening to think that Australia has not learnt the lesson of valuing humanity rather than financial gain.

What the legal system demands from native title claimants is purposefully problematic and unaffected by the clear disadvantage the current system of native title places upon claimants. The term Terra Nullius is null and void, but what has changed? It appears as though any apparent good that was achieved by the Mabo case and the rejection of Terra Nullius has been undermined by a socially unjust legal system and proceeding government legislations with their lust for the dollar. Native title, upon examining the Mabo determination, understandably presented hope and progress in the First Peoples of Australia’s claim to lands, but to date it appears as though the native title is merely a title. Terra Nullius is only a term, albeit a powerful one, but the power of term and language rests within the dominant discourse that forms them or validates their use. Terra Nullius may be removed from the Australian legal system but the dominant discourse of mainstream Australian society remains unchanged, therefore the removal of Terra Nullius was a symbolic gesture that equated little real effect.