Sunday, 3 June, marked the 20th anniversary of the Mabo decision – when the High Court of Australia overturned the legal fiction that Australia was terra nullis before European colonisation. The legal judgment on native title carries the name of Eddie ‘Koiki’ Mabo, one of the four co-plaintiffs from Murray Island, or Mer.
People commonly confuse native title (such as in Mabo) with land rights. However, although native title can lead to land rights being conferred, the court does not hand over a title deed for that land. In contrast, land rights consist of various bodies of legislation that grant Indigenous people freehold or perpetual leases under community title.
The decision to make Indigenous land tenure communal was based on the belief that Aboriginal people did not have a system of individual ‘ownership’ of land before European colonisation. However, amongst the commentary on Mabo was an article in the Koori Mail suggesting that the traditional Aboriginal concept of ownership was more ‘individual’ than most people in Australia recognise. Traditionally, the people of Murray used their own laws and customs – known as Malo – to define their boundaries. Eddie Mabo argued that he could trace back the inheritance of his land to 15 generations.
In the Koori Mail article, Greg McIntyre (a young solicitor at the time and now a senior counsel) recalls the evidence that Eddie presented at trial:
Eddie had several blocks ... Round where he is now buried, he had a collection of blocks that go up to the hill. And there were various plots; garden plots all the way up to the airstrip. He asserted those lands through various inheritance lines.
The idea that Aboriginal people did not ‘own’ land and that the land instead ‘owns’ them is often used in arguments against leases for private homeownership on Indigenous land. When the Howard government introduced the idea of 99-year leases to facilitate private homeownership and economic development on Indigenous land, Professor Mick Dodson suggested that losing communal ownership of land ‘could be very, very dangerous for Aboriginal people ...’ Senator Aden Ridgeway said Howard’s views were ‘drawn purely from a Western perspective that prizes individualism,’ and illustrated a ‘profound cultural misunderstanding.’
However, anthropologist Peter Sutton challenges this notion in his book The Politics of Suffering: ‘Private homeownership can be understood not so much as a departure from communal Aboriginal tradition [but] as a reincarnation of traditional rights of householders.’ (p. 133) According to Sutton, ‘Campers had customary rights to surface improvements, while at the same time an undisturbed communal title, possibly not held by the occupant, persisted in the land underneath.’ (p. 133)
In focusing on the communal nature of Indigenous land, previous governments failed to recognise the individual nature of its use, such as the garden plots Eddie Mabo inherited from his father. The federal government says it will review the process for granting native title; perhaps it is also time for people to review the perception that the only way Aboriginal people can own land is communally.
Sara Hudson is a Research Fellow at The Centre for Independent Studies.