BY LINDA HARRIS
SYDNEY, Australia - On November 24 the Miriuwung and
Gajerrong peoples won a victory for Aboriginal land rights in
the Federal Court here. Justice Malcolm Lee upheld their claim
to a 7,653-square-kilometer tract of Kimberley land in the far
north of Western Australia and the Northern Territory.
The Miriuwung-Gajerrong claim was lodged more than four years ago by Ben Ward on behalf of 100 traditional owners. They have been fighting for the past 30 years to have their rights over the land recognized.
The decision extended native title rights further than the 1996 High Court ruling in the Wik case, which legitimized native title on a case-by-case basis on pastoral leases. Lee ruled that pastoral leases may regulate or suspend native title but not extinguish it under any circumstances. He said that Aborigines had occupied the land for at least 40,000 years and had traditions and customs that connected them to the land.
This case is being welcomed as the first successful native title claim on the mainland. "This is the most significant decision of all because it takes into consideration areas of freehold, lease land, pastoral land, waterways, the whole lot," said Dennis Eggington, the Aboriginal Legal Service chief executive.
The claim included large areas of resource-rich land. The judgement awarded the claimants the right to decide how the land should be used and to receive a share of any resources taken by others. Assistant director of the Association of Mining and Energy Exploration Companies Tamara Stevens said that mining companies were alarmed and confused. "This judgement is too...open ended," she stated, and "it doesn't bode well for [the mining industry's] future development."
Reflecting the polarization on the question of Aboriginal land rights, Greg Smith, a Liberal member of the West Australian state Parliament, claimed that the judgement meant Aboriginal groups could put a toll gate at the entry to the Kimberley region. Robert Hannan, the spokesperson for the Miriuwung and Gajerrong families said that it was never their intention to block development or stop people coming into the area. "Our intention is to protect and preserve our cultural heritage and sacred areas, and any negotiations on development or anything else would be done in that context."
However, the Federal Court ruled that native title had been extinguished over some parts of the claimed land, including roads, public reserves, some land surrounding the town of Kununurra, and the Ord River dam and power station.
From the time the claim was lodged, the governments of the Northern Territory and Western Australia opposed it, spending millions to fight the case.
In April 1997, the Federal Court ruled that only people of the same gender are permitted to hear evidence about Aboriginal "secret men's and women's business." The West Australian government appealed unsuccessfully to the full bench and then to the High Court against this ruling.
Now West Australian premier Richard Court indicated he would appeal to the High Court against the final ruling. Court has also signaled his intention to push ahead with his government's native title legislation, which would extinguish Aboriginal land rights on large tracts of land including those covered by Lee's ruling. This would trigger a compensation claim that Richard Bartlett, who represented the Miriuwung and Gajerrong peoples, said could be worth massive amounts of money.
The Federal Court judgement undermines the Howard government's legislation that amended the Native Title Act in July, restricting the rights of Aborigines to negotiate over land title. The bill, narrowly passed in the Senate, was in response to a rightist campaign to nullify the Wik ruling spearheaded by wealthy pastoralists and Pauline Hanson's ultrarightist One Nation Party.
Aboriginal leaders have hailed the ruling as the most significant since the High Court's Mabo ruling of 1992, which recognized the native title rights of the Mer people in the Torres Strait. An editorial in the November 26 The West Australian called it "a significant landmark in the evolution of law on Aboriginal land claims."
The message from the judgement, which reaches beyond the borders of the Miriuwung-Gajerrong claim, said Aboriginal leader Pat Dodson, is regardless of how protracted, bitter, or expensive the process, Aborigines will continue to pursue their rights to native title. "We have got to accept that native title is here. Indigenous people are going to exercise their rights to protect it."
Linda Harris is a member of the Australian Manufacturing Workers' Union