Dodson and McCarthy: putting culture before life
The indigenous struggle for legal concessions favourable to traditional customary law and culture is encapsulated in the quest for land rights. Aboriginal society is inextricably interwoven and connected to land. In Mick Dodson’s words, “Removed from our land we are literally removed from ourselves.” Noel Pearson concurs, noting that for Aborigines the loss or impairment of land is “not simply a loss of real estate, it is a loss of culture.”
It is important to note two competing versions of justice. One version of justice, espoused by Mick Dodson and Diana McCarthy in this recent paper, sees communal title as the norm until government consults with indigenous people to see if their cultural beliefs permit something different. The other version, which I prefer, places property rights in the broader developmental context. I would suggest Mabo (No.2) has had a detrimental effect on indigenous policy as a whole for the simple reason that it has legitimised communal title as a worthy ideal.
Without denigrating the symbolic value of native title, it is untrue to claim that communally owned land can co-exist with economic development. Such claims directly contradict the evidence from socialist countries throughout the world. Individual freehold property would increase the wealth of Aborigines by providing them the freedom to take out a mortgage and construct their own home or business, buy other assets, or sell their land if they chose to do so.
In one stroke, the lack of adequate housing could be reversed. An individual property rights framework is crucial in preventing the ‘tragedy of the commons’, where environmental resources are used unsustainably because no one owns them and there is no incentive to be conservative in their use. This would be real justice, as it would place control directly in the hands of Aborigines instead of bureaucracies who reap the benefits of the ‘Native Title Industry’.
While commentators such as Dodson and McCarthy have taken the economically indefensible position of supporting communal title, they have done so on the basis of culture. They denounce the recent amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 on these grounds:
“In our view…it is inappropriately interventionist to consider privatising Indigenous land without consultation with and consent from its owners. We conclude with Altman that the policy pendulum appears to have swung reactively to focus primarily on the elimination of socioeconomic difference, while overlooking cultural difference and plurality.”
They are correct in pointing out that establishing an individual property rights framework would be the wrong thing to do if cultural retention is the goal. Cultural retention however, can never be given greater importance than equality of opportunity. Implicit in the reasoning of Dodson and McCarthy is that Aboriginal culture should not change and incorporate modern elements. Others, such as Pearson, reject this static view:
“It is natural for peoples to advance from hunting and gathering to agriculture to industrialism… To secure Aboriginal economic development, it might be necessary for us to make far-reaching concessions to the dominant culture.”
It is easy to dismiss calls for an individualistic property rights framework (equal in all respects to mainstream Australia) with a critique of Westernisation. But the indigenous concept of right of consent – now watered down to ‘right to negotiate’ in the Native Title Act – is similar to the alienation right that characterises Western law. Moreover, indigenous leaders have called for practical reconciliation. When will politicians listen?
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To secure Aboriginal economic development, it might be necessary for us to make far-reaching concessions to the dominant culture.
That’s good of him to acknowledge 200 years of history.
Aboriginals can go form multinational media firms, run cattle farms, or go hunter gatherer for all I care, so long as they don’t get special treatment from the state.
I think the problems are not necessarily so much to do with community title as it is with inaliable land rights. Inaliable means that you can not sell or morgage the land.
Aboriginal land rights in practice mostly mean that the land is set aside as a wilderness area and aborigines can visit without white fellas hanging around. Which most of the time is fine by me but it won’t lead to economic prosperity or an end to poverty. Anybody who lives a subsistence life in a national park is going to lack certain things. However I think we should all be allowed to live free and poor if that is our desire. Turn off the welfare tap and let people decide for themselves.
Is there a reason why we shouldn’t have mass handovers of Crown land to Aborigines to use as they see fit? This may involve ’special treatment’ (but they did have much of that land taken from them in the first place) however it would also have the advantage of reducing the scope of government.
Correction: *they* did not have it taken from them. Mostly, their ancestors did. However, the point still stands.
This paper says spending on indigenous affairs has grown from $10 million in 1968 to $3 billion in 2004 (don’t think it’s adjusted for inflation, but still). Notionally, it would be better to just give them a potentially wealth creating asset and reduce this massive expenditure (no doubt going to prop up public servants’ salaries). Because otherwise, each election will see political parties outbidding the other in this area. But more spending is not what is needed, and that should be cause for concern to all taxpayers.
Notionally, it would be better to just give them a potentially wealth creating asset and reduce this massive expenditure (no doubt going to prop up public servants’ salaries). Because otherwise, each election will see political parties outbidding the other in this area. But more spending is not what is needed, and that should be cause for concern to all taxpayers.
Neither works. All Australians are equal, if crown land is to be divided up, every living Australian should be issued shares in a private Commonwealth Land Holdings Corporation, which can then be traded, bequeathed or whatever. The CLHC would have freehold title over all existing crown land, inherit all state held leases, and be free to use this land in whatever way its shareholders feel fit. You could even divide it along different lines, say state based holding companies, natural park holding companies, government land holding companies etc. Greenies want to preserve the wilderness, then they can buy up shares in the nationa parks and buy new land to add to it. Of course they can do that now, but Greenpeace would rather solicit money to stage high-profile stunts, like harassing Japanese whalers.
Even ownership of rivers and the coast/sea could be possible, with access rights licensed by the owner. Private owners are unlikely to allow over-fishing if it decreases their asset value. Minerals in the ground don’t belong to the crown, they belong to the people who invest in the development of the resource. Bully for you if you happen to own land on which a oil field is discovered, but the rent you charge for access to the resource would have to be agreed before a oil explorer would enter into any contract to survey your land. These windfall resource discoverys may be unsatisfactory at first to the majority, but within a generation or so, land ownership would in no way reflect that at the point of privatisation. There would be a certain amount of unfairness initially, but this unfairness would be far preferable to state ownership of current crown land.
If a group of aboriginies had land stolen from them by the crown and:-
1. their descendants can demonstrate an ongoing and unbroken association with the land
2. the land is still owned by the crown
then I think it is fair and reasonable and just that the land be returned to their descendants.
If a group of aboriginies had land stolen from them by the crown and:-
1. their descendants can demonstrate an ongoing and unbroken association with the land
2. the land is still owned by the crown
then I think it is fair and reasonable and just that the land be returned to their descendants.
Why does it make a difference whether the crown owns it or I own it? It would not matter how many people had bought and traded my stolen Holden, the car would still be mine, irrelevent to whether I could
1. demonstrate an unbroken link (ie. registration papers)
2. the thief was still in possession
Native title and land rights are at odds with common law, and cannot be easily resolved. Hence all the legal cases that continue to increase uncertainty in our legal system.
Primitive ideas such as association with ancestral land does not constitute ownership. Adverse possession (title transfer via squatting) may come into force under common law if crown land was converted into private land, since government owned property is generally immune from adverse possession. In effect, the British took adverse possession of Australia since the native population were unable to defend their title claims and did not exercise sovereignty. The first British settlers were squatters. Admittedly, these concepts were beyond the understanding of their civilisation, but this is history we are talking about.
However, if such a scheme were to be introduced, I would argue that it be based on freehold title, rather than native title or land rights. Freehold title unleashes individuals, lands rights collectivise them.
On an aside, I wonder if individual aboriginals could claim adverse possession over land held by native title?
I am unable to defend myself against the ATO. Tax is still theft. However once the money has been transacted on 50 times I don’t see any justice being served by laying claim to it. However if the ATO still had those specific coins in the vault after 200 years had passed, I would still claim they should give it back.
What rubbish. Such primitive ideas form the entire basis of sovereignty.
I propose the following:
1. The Commonwealth Government should immediately cede control of the bulk of its powers relating to Aborigines to the states. Decentralised federalism is the surest way to accommodate the diverse range of local circumstances that must be taken into account when formulating indigenous land rights policy.
2. The states should conduct land surveys of tribal areas and, after consultation with and willing participation from a simple majority of historical residents or traditional owners, should randomly allocate each Aborigine over 18 years with a voucher that entitles them to an equal plot of Crown land (for example, one square kilometre).
3. As some will have received land not suitable to their individual purposes, the states should then manage a barter system to allow Aborigines to negotiate and trade vouchers till they reach suitable agreement amongst themselves. The land they now own is freehold and they shall enjoy the same rights as any other Australians. The Aboriginal participants must agree, however, to not launch any future legal claims trying to claim more land.
It seems we agree the scope of government should be reduced by placing ownership in private hands, but we disagree on whether Aborigines should be given special treatment and receive this land, instead of all Australians equally. I’m not a fan of being bogged down in history, but in this case I think there is a legitimate moral claim on the part of Aborigines. It is also in our own self-interest, as non-Aborigines.
I am surprised there has not been more violence between non-Aborigines and Aborigines in the present day. Giving back crown land would be politically feasible and would allow the Australian economy to incorporate the skills of Aborigines.
[...] I don’t advocate forced assimilation. However, Aborigines in remote communities should be given the opportunity to choose to assimilate or integrate, just as migrants do. The present system makes voluntary assimilation difficult, although the numerous indigenous people migrating to towns and cities indicates there is demand. Such indigenous migrants do not seem to value cultural retention as highly as commentators like Mick Dodson and Diana McCarthy. [...]
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