26 January is the date upon which the first English penal colony was estabished in Australia. It also marks the beginning of the invasion of native lands, continent-wide cultural destruction and the horrifying genocide inflicted on the first Australians.
A mendacious legal theory known as terra nullius proclaimed that the great southern land was devoid of human beings - an empty place belonging to noone - and so able to be claimed as the territory of the United Kingdom. Aboriginal people were not counted as part of the population until a constitutional amendment in 1967. The Australian native people never ceded sovereignty. No treaties were ever negotiated with the tribal leaders of the Aboriginal nations. The consequent centuries of suffering endured by the Aboriginal people constitute one of the greatest tragedies of modern human history.
In 1992, the High Court of Australia delivered its landmark Mabo decision which rewrote the Australian common law and gave a massive boost to the struggle for the recognition of Aboriginal land rights.
The decision said that under Australian law, Indigenous people have rights to land - rights that existed before colonisation and which still exist. This right is called native title.
By a majority of six to one, the High Court ruled that native title to land is recognised by the common law of Australia, throwing out forever the legal fiction that when Australia was "discovered" by Captain Cook in 1788 it was terra nullius, an empty or uncivilised land.
The case centred on the Murray Islands in the eastern part of the Torres Strait Islands between Australia and Papua New Guinea. The Meriam people, led by Eddie Koiki Mabo, took the action to the High Court to overturn the doctrine of terra nullius.
The judges in the case declared that:
... the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.
It was the first time that the High Court had considered the position of Indigenous people in Australian property law and their judgement was not restricted to the Murray Islands.
Justice Brennan said:
... there may be other areas of Australia where an Aboriginal people, maintaining their identity and their customs, are entitled to enjoy their native title.
Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation.
... spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame.
The acts and events ... (of Aboriginal) dispossession ... constitute the darkest aspect of the history of this nation... The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices.
Soon after the decision of the High Court, the Parliament of the Commonwealth of Australia enacted the Native Title Act, 1993 whose objects were to:
(a) to provide for the recognition and protection of native title; and
(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.
In East Timor, traditional lands - and people - remain susceptible to unjust dispossession by the State. There is no constitutional protection of traditional lands in the Constitution of the Democratic Republic of East Timor. Article 2 (Sovereignty and constitutionality) provides, inter alia, that the "State shall recognise and value the norms and customs of East Timor that are not contrary to the Constitution and to any legislation dealing specifically with customary law." Article 141 provides that "ownership, use and development of land as one of the factors for economic production shall be regulated by law. The juridical status of traditional land tenure systems in East Timor is therefore entirely dependent on the enactment of legislation. No such legislation exists in East Timor.
There have already been instances of arbitrary appropriation of traditional communal lands in East Timor. The earliest was in 2002 when traditional lands of the people of the Metinaro area to the east of Dili were acquired by the State for the establishment of the Falintil-East Timor Defence Forces base.
The negotiation process was accompanied by armed military personnel and the compensation was in the form of rice and other consumables. There was no market value valuation of the land prior to the resumption. When the land was surveyed by the Land and Property Unit from the East Timor Department of Justice, local people, armed with traditional weapons, challenged the cadastral officers but any further questioning of the process was extinguished by the presence of armed military personnel in subsequent stages of the resumption.
The possibility of the Metinaro traditional owners disputing the resumption by appealing for a judicial review was far beyond their circumstances. This approach to the resumption of traditional lands in the pubic interest by the State was also deployed by the Indonesian state in East Timor and throughout Indonesia during the New Order regime.
Cases such as this clearly demostrate the need for legislation in East Timor for the recognition and protection of traditional land tenure systems.
Image - Mr Eddie Mabo (deceased), of the Meriam people in the Torres Strait.
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