A man may see how this world
goes with no eyes.
Look with thine ears.
King Lear, Act four, Scene six.
I recently read an excellent overview article examining
progress over the past sixty years in restoring rights over land to Indigenous
groups and interests. That article, Aboriginal Land Rights in Australia:
Neither National nor Uniform, authored by Francis Markham and Heidi Norman
provides what is perhaps the best and most valuable overview of the development
of land rights across the nation in recent decades. See the abstract and
hyperlink to the article at the link (link
here). The authors combine a synoptic account of the nation’s struggle to
come to terms with the reality of dispossession of First Nations with succinct
but detailed accounts of the variable processes adopted across the multiple
jurisdictions that comprise the Commonwealth of Australia.
Their conclusion states, inter alia:
Legislative responses to
recognize Aboriginal land rights were initially led by the states, and the
Commonwealth in the Northern Territory. The Woodward Report [to the Whitlam Labor
Government] was intended to guide state-based responses; however, both the
Fraser coalition government in the late 1970s and the Hawke Labor government in
the 1980s failed to advance a national land rights agenda that left advancing
Aboriginal interests in land to the states and litigation through the courts. …
Litigation that successfully challenged the legality of occupation [the Mabo
Case] necessitated a Commonwealth Government response confirming land dealings
and creating a mechanism for the recognition of native title. State-based
responses after recognition of native title rights and interests have continued
to evolve. … In Victoria and Western Australia, settlement processes have been
underway that utilize the structures of the Native Title Act, and that also engage
the states in the negotiation of a range of social justice aspirations that go
beyond land repossession.
In this chapter we argue the
land rights recognition in Australia is an outcome of shifting
state–Commonwealth relations within the Australian federation. This has led to
a hugely varied and spatially uneven set of legislative land rights regimes
across Australia, placing onus on Indigenous Peoples to work to advancing their
rights and interests in the absence of agreed-upon national standards or
leadership from the Commonwealth government.
The conclusion emanates from the detailed recounting of the
processes that led to the various state and territory responses, and the value
derived from having a jurisdiction-by-jurisdiction narrative of the processes
pursued. There are very few potential readers who would not learn something new
from reading this account. I did have a few minor quibbles. For example, notwithstanding
detailed discussion of the Aboriginal Land Fund Commission which operated
between 1974 and 1978, there is no mention of its successor, the Indigenous
Land and Sea Corporation established in 1995 following the passage of the
Native Title Act (link
here). My idiosyncratic quibbles however do not detract from the overwhelming
value and importance of the article.
The authors’ core analytic frame seeks
to provide an explanation of the narrative laid out in Altman & Markham’s
2015 article (reference below) which used a series of quite stunning maps to
visually demonstrate both the extent of dispossession and the partial extent of
restitution since settlement. The authors explanation, which is persuasively
argued, is that both Labor and Coalition national governments, for different
reasons, failed to legislate a national land rights regime consistent with the
Woodward Commission principles that underpinned the Commonwealth’s 1976 land
rights legislation in the NT (despite having the constitutional power to do so).
This failure continued notwithstanding that several states, particularly WA and
Qld, failed to legislate adequate state land rights legislation. This left a
‘centralising’ High Court with the opportunity to step into the gap and
recognise the existence of native title under common law principles.
The authors suggest that the High Court decision in Mabo
‘may be seen as a move by the judiciary to force the Parliament to legislate on
the unresolved question of national land rights, which the Commonwealth had
abandoned for almost a decade.’
While the authors’ assessment is framed around a
comparative assessment of governments’ actions against the (arguably arbitrary)
benchmark of uniform national land rights consistent with the Woodward
commission principles, it seems to me that it is not the only approach to
assessing the slow and rocky progress in coming to terms with Indigenous
dispossession across the nation, nor to understanding what transpired.
In one alternative framing, it
might be argued, contra the authors, that the High Court was focussed more on
addressing the injustice of dispossession in contexts where prior alienation of
the land in favour of the Crown had not occurred. This did have national
application by virtue of being Australian law, but it did not necessarily
require national legislation. The fact that the Keating Government decided to
legislate the Native Title Act was in this framing essentially a political
decision aimed at removing uncertainty, and the threat of a loss of social
cohesion and political support across the community had the issue been left to
the states to manage. The political objective was thus not to reach a consensus
between the states and Indigenous interests (see page 137) but to establish
processes consistent with the High Court decision that provided certainty to
existing non-Indigenous landowners (hence the post 1975 validation provisions)
and thus to the electorate at large. Such an alternative framing is consistent
with the authors’ conclusion that the NTA was reformist not revolutionary in
its impact.
A second alternative framing would
look past the antics of political parties vying for political office, and
analyse the events in this space over the past sixty years as an ongoing
conflict between the state (representing core economic interests such as miners
and pastoralists) and the heterogeneous and diverse Indigenous interests,
mediated by temporally divergent contact histories, divergent political systems
in different states and territories, and the ongoing systemic exclusion of
Indigenous people from the benefits taken for granted in the mainstream settler
community. In this framing, the political gridlock over national land rights
was the outcome of deep-seated ideological and interest-based differences and
was only undone because the adverse consequences on dominant interest groups
from the loss of political cohesion arising from perpetual and systemic
exclusion had different and temporally determined consequences in different
jurisdictions. There is evidence for this framing in a close examination of the
Noonkanbah issue which the authors mention, but without seeking to look beneath
the public narratives promulgated by the Western Australian Government and its
then Premier, Sir Charles Court.
The extraordinary action of the Court Government in despatching
from Perth, in a blaze of manufactured publicity, a police-protected convoy of
drilling trucks to facilitate drilling on a mere exploration lease (that was eventually
abandoned by Amax, the explorer), does not stack up. It was designed to create
conflict, with the ALP Opposition, the unions, and with Aboriginal interests
and to promulgate a narrative of irrational opposition to mining and the
economic development associated with it. Conveniently, albeit never acknowledged
or recognised by governments nor the media, it created a major distraction from
the simultaneous battle between miner CRA (now Rio Tinto) and Aboriginal groups
over site destruction at the proposed Argyle diamond mine which ultimately extracted
diamonds conservatively valued at around AUD$8 billion over the 37-year life of
the mine. There was clearly an incentive to find a way past the strictures in the
then WA Aboriginal Heritage legislation.
In this framing then, the question becomes why did the High
Court act to break the policy and political gridlock when it did? I don’t
pretend to have a definitive answer but suspect it would comprise a combination
of wider judicial and political context, realisation that social cohesion would
be at risk if the increasing gap between the values the nation claims to live
by and the values being applied, as well as the emergence of individual agency
by progressive and forward-looking individual judges.
A third alternative framing (which
I find attractive) would focus on the prolonged impact of systemic exclusion in
leaving Indigenous interests without the ability to apply robust interest group
pressure. Yet as those impacts weakened, Indigenous interests were able to
mobilise and drive incremental gains, assisted by allies such as progressive
lawyers and the unions. I note that the authors of the article spend remarkably
little time focussing on the roles of Indigenous advocates in both driving
reform and change, and in addressing why those efforts failed where they did
and succeeded where they did. It strikes me that these are important issues
that require consideration in any overarching account of the drivers of the
restitution agenda over sixty years.
The authors comment in the last sentence of their
conclusion (quoted above) that this places the onus on Indigenous interests to
advocate to advance their rights and interests in the absence of leadership from
the Commonwealth resonates with this framing. However, a close reading suggests
that the authors (a) believe that governments have a responsibility to, in
effect, do the right thing. There is also perhaps an implication or suggestion —
and I may be wrong in attributing this to the authors — that (b) Indigenous
interests only need to criticise government for their non-performance or quote
the UN Declaration on the Rights of Indigenous Peoples often enough, for governments
to see the light and do the right thing. While I vehemently agree with proposition
(a), I have concerns with any suggestion along the lines of (b). A realist
interpretation of public policy formation on land rights, Indigenous policy, or
indeed any public policy in modern Australia, suggests that governments react
only to organised interest groups (except where electoral pressure emerges which
forces a reconsideration), and that where there is a gap between the public
interest and the interest group interest, then the public interest suffers.
Think about gambling or health insurance, or FOI ‘reform’, or alcohol
regulation policy, or virtually any other issue governments touch (link
here).
A fourth potential framing would
focus more on the institutional underpinnings of the restitution process. I don’t
propose to outline this in detail, but would point readers to my own 2017 paper
on the strategic challenges facing native title (link
here) which covers only part of the policy landscape the authors cover in
their paper.
To sum up, Francis Markham and Heidi
Norman have produced an excellent and succinctly comprehensive overview of the
development of the policies of land restitution to Indigenous interests in
Australia over the past sixty years. Their article will expand the wider
understanding of the history of land rights in Australia and deservedly be
widely cited over the coming decade and perhaps beyond. Yet it relies on a
particular framing, which I am not arguing is wrong or misconceived, but rather
might be seen as incomplete or partial given that at least several credible
alternative framings exist (and probably more that I have not identified).
My deeper purpose in
this post is to argue for a wider acknowledgment of the constraints of particular
narratives however attractive and well-conceived they may be, and thus for a
wider openness to the idea of narrative diversity in shaping the underpinnings of
policy development and policy critique. Implicit in this view is an argument
for a stronger commitment to understanding the intellectual and conceptual
rationales for, and underpinnings of, particular policy approaches. I have a
sense that both governments and to a lesser extent the academy have lost sight of
the importance of intellectual dialogue and debate as a crucial element in
driving better policy outcomes.
Werner Heisenberg wrote (in his 1958 book Physics and
Philosophy: The Revolution in Modern Science) that ‘We have to remember
that what we observe is not nature in itself, but nature exposed to our method
of questioning.’ In discussing and assessing Indigenous policy there is a
parallel need to be aware of the ‘method of questioning’ underpinning both the
narratives employed, the frames of reference utilised to justify, assess and
critique those policy narratives, and the rationales adopted to justify the policy
decisions taken.
References:
Altman, J. C., & Markham, F. (2015). Burgeoning
Indigenous land ownership: Diverse values and strategic potentialities.
In Brennan, S., Davis, M., Edgeworth, B.,
& Terrill, L. (eds.), Native Title from Mabo to
Akiba: A vehicle for change and empowerment (pp. 126–142). Melbourne: Federation
Press. Google Scholar
Dillon, M.C. (2017) Emerging strategic issues in Native Title:
future political and policy challenges, CAEPR Discussion Paper 292/2017,
Centre for Aboriginal Economic Policy Research, ANU. https://cipr.cass.anu.edu.au/research/publications/emerging-strategic-issues-native-titlefuture-political-and-policy-challenges
Markham, F., & Norman, H. (2025). Aboriginal Land
Rights in Australia: Neither National nor Uniform. In W. Nikolakis (Ed.), Land
Rights Now: Global Voices on Indigenous Peoples and Land Justice (pp.
119-148). Cambridge University Press. https://doi.org/10.1017/9781009521581.009
29 October 2025
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