Introduction
No doubt one of the most difficult, complex and controversial legal issues of the last century has been the return of traditional lands to the indigenous people of colonial nations. The modern Western governments can’t be expected to return entire continents to the descendents of the traditional owners, but certainly it is important that some compensation be made for the theft of land during colonisation. Australian Aboriginal land legislation has been particularly problematic due to the fact that a special legal relationship has never been established between Aboriginal groups and the Commonwealth government. In the U.S., the cases presided over by Supreme Court Justice John Marshall established a fiduciary relationship between the federal government and federally recognised Native American groups, which were declared ‘domestic dependent nations.’ This meant their reservations were not subject to State-level legislation, something which has been a great impediment to Australian Aboriginal fights for land. Through the myriad of legislation, I have attempted to establish a concise order of the most crucial events to date in the struggle for Aboriginal land rights.
1. Aboriginals’ loss of land at the hands of English common law
At the heart of it all, the Aborigines want their land back because British colonists took it. Since the landing of the First Fleet in 1788, the debate has been the same: did they have the right to take it? William Blackstone is most commonly credited for establishing the basic tenets of English colonisation and the concept of Terra Nullius. Because Australia was uninhabited (that is, uncultivated), it was considered to be settled peacefully, allowing the laws of England to take precedence over Aboriginal law immediately following the settlers’ setting foot upon the continent. However, reality wasn’t near peaceful, as conflict and bloodshed plagued the colonisation process. Mildred Kirk says it best: ‘Aboriginal law was not recognised, but British common law was to apply to newcomers and Aborigines alike, and Aborigines were entitled to its full protection. It is clear that events overtook legal theory.’ English law did not allow for theft any more than Aboriginal law; it was merely a matter of the colonists failing to recognise Aboriginal land tenure. Because of this, the Crown considered all the lands of the Australian continent to be under its domain, as it was later established in the 1847 case Attorney-General v Brown. For 180 years, Aborigines had their traditional homelands taken from them, but it was not until after World War II that they began to use the Australian legal system to fight to regain some of that land.
2. The Rise of the Modern Land Rights Movement
The modern land rights movement began in 1963, when the Yolngu people of the Gove Peninsula sent a bark painting to the Commonwealth government in Canberra. This was a petition protesting bauxite mining within the Arnhem Land Aboriginal Reserve and demanding that the people living there have a voice in mining affairs and the excision of Reserve lands. Clearly this marked a dramatic perceptual shift for people involved in Aboriginal land affairs. Mildred Kirk states, ‘By sending a bark painting petition rather than one simply written on paper, and by drawing attention to their own laws of land ownership based on the possession of sacred objects that validated ownership in the same way as a deed, they forced those in power to face the fact that such things existed.’ But in 1970, Justice Blackburn declared that the Yolngu people had no rights to control over the Arnhem Land Reserve.
Three years after the Gove petition, in protest of poor conditions and wages, 200 Gurindji people walked off Wave Hill Station. As the strike progressed, the demand transformed from one of better employment to one of land ownership. Perhaps in walking off the station, they realised they had nowhere to go: the pastoral lands of Wave Hill had been their ancestral homeland. They eventually got it back in 1975. While Wave Hill was a success and Gove was a failure, both are equally notable in the land rights struggle in that they opened people’s eyes on both sides of the issue. Other Aboriginal groups took these two acts as examples to follow, and as Aboriginal people brought their grievances to the attention of the courts and legislative bodies, they forced politicians to