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Selwyn Johnston

INDEPENDENT COMMUNITY REPRESENTATIVES'

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(Cairns... Far North Queensland)

 

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NATIVE TITLE verses TRIBAL LAW

The Author of this document is a priest and lawyer based at the Sacred Heart Monastery, in Kensington, Sydney. He is originally from Gooloogong in the New South Wales Central West and is a member of the Society of the Missionaries of the Sacred Heart (MSC). He worked with aboriginal people at Port Keats in the Northern Territory for four years and until recently managed the MSC Justice and Welfare Office. Contact details are available at the conclusion of this document.

The Catholic Church continues to defend the position it has taken in relation to native title and the decision of the High Court in Wik. This naive adoption of a political agenda does little to enhance the dignity and standing of the Church as a source of wisdom and a custodian of truth. At present certain elements within the Church are preaching the gospel according to the aborigines, having departed from the usual source of truth (Scriptures and Tradition) in favour of a political campaign which is arguably self-serving. Thus, the question of who ought to be eligible to make a native title claim is apparently not up for discussion. The question is an important one particularly as it relates to persons of mixed aboriginal descent.

The High Court in Mabo recognised native title according to 'their' tribal law and custom. By allowing mixed-race aborigines as native title claimants, native title is recognised according to 'our' law in the Native Title Act. The distinction is important. Some difficulties may arise with references to persons as being of 'mixed-race' or of 'mixed aboriginal descent' but these problems are to be expected when laws from traditional cultures are introduced into our modern system of law. Traditional aboriginal culture was not the cradle of democracy but we are nevertheless obliged to adopt their law with respect to people of mixed aboriginal descent because it is part of the customary tribal law of native title. This topic may be a sensitive one but I would argue that the cause of right is served by raising it. No offence is intended to any aboriginal person but if the topic is not up for discussion then we are indeed diminished as a nation. Here follows some of my views in relation to eligible native title claimants.

What the High Court did in Mabo was to uncover in Australian common law some traditional native law. Native title is part of the general law of the tribe and certain members of the tribe are designated tribal law men. Native title gives the members of the tribe certain rights with respect to tribal land. It does not give those rights to people outside the tribe and thus, it does not give those rights to people of mixed aboriginal descent. A potted version of the story goes something like this.

Prior to 1788 this continent was inhabited by a people who were said to have been here for some forty thousand years. Then came the Europeans. So at that stage there were two groups on the island; the tribal aborigines and the Europeans. Then a third group began to appear. These were the results of the intermingling of Europeans and tribal people; they were mixed-race. The mixed-race people did not fully belong to either of the first two groups. Prior to the 1967 referendum, mixed-race people and the tribal people were under the authority of the Protector of Aborigines and neither group enjoyed the rights of Australian citizens. But all that changed with the referendum of 1967. The referendum removed the section in bold type as under:

 

S51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to, ……

(xxvi) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

And so the mixed-race people became citizens of this country. Unfortunately for the tribal people, they too became Australian citizens and subject to our laws; they lost their sovereignty. What the 1967 referendum gave to the mixed-race people it took from the tribal people. The mixed-race people got lumped in with the tribal people and they all became aborigines. Thus 'aborigine' was defined such by our law that now the mixed-race aborigines are given the same traditional rights as tribal people. These rights, tribal people will not, and can not by tribal law, ever give them.

Tribal people may consent to give a mixed-race aboriginal person some rights or communal recognition but never the right to ownership of land. Their land is their life source and their identity. It is the defining principle of their existence and is at the heart of their law. There are other people who have very strong attachments to the land going back many generations but a tribal man's relationship with the land is unique. Thus, by definition, it is impossible for a mixed-race aborigine, or any other person in Australia for that matter, to have an affinity with the land, which is the same as that of a tribal aborigine.

The tribal people may not give the person of mixed aboriginal descent native title rights because it is against customary tribal law. So whose law is the Native Title Act purporting to give effect to when it allows a mixed-race aboriginal as a native title claimant?

The answer is 'our' law.

It is clear that the Native Title Act goes well beyond customary tribal law, and therefore, well beyond the common law, when it allows a mixed-race aboriginal person as a native title claimant. A person with some aboriginal heritage who has aboriginal communal recognition may well be classified as an aboriginal person for certain purposes but that’s 'our law'. Mabo recognised in our legal system traditional native land title, which has to be transferred according to traditional tribal law. Traditional tribal law does not apply to people of mixed aboriginal descent. Under the present Native Title Act people of mixed aboriginal descent are being given rights to which they are not entitled. There is no basis in Mabo for the granting of such rights.

Fr Cyril Connolly MSC, informed by tribal elders from the Top End (tribal law elders being the only appropriate source of information of this nature) offers the following principles of customary tribal law with respect to succession to tribal land:

 Tribal customary law recognises native title rights to reside only in those people who are aboriginal by their law. This means that a person must be born of a tribally initiated father and mother and no one else.

Native title rights are vested only in the male person. His authority over his land or 'country' increases as he progresses through the levels of ceremonial law. Here again no one is admitted to the process of ceremonial law and its rituals unless he qualifies by being born of a tribal father and mother.

 Native title to land does not reside in the woman, nor does it descend, in tribal customary law, through the female line.

 There is no provision in customary tribal law for making someone into an aboriginal by defining them to be one.

 A person who has a non-tribal father and a tribal mother has visiting rights to his mother's country and can stay there. He may also take part in some of the discussion but he has no land 'ownership' rights; no native title rights.

By allowing mixed-race aborigines as native title claimants, the Native Title Act adopts its own version of tribal customary law and, in so doing, strays from the test of the High Court in Mabo that native title must be ascertained in accordance with their laws and customs. Mixed-race aborigines are not legitimate native title claimants and the Native Title Act should be amended to reflect that. On the above analysis, any successful native title claim by mixed-race aborigines is inherently unjust. Thus, whilst the High Court has said that native title still exists in Australia, there will be no existing eligible native title claimant unless traditional native law with respect to such claimant is satisfied.

The provision of social justice for mixed-race aborigines will not be satisfied by continuing to transfer to them interests in property to which they have no common law entitlement. Thus, native title is not a human rights issue nor can it be a factor in the so-called process of Reconciliation. To have linked these issues is misleading and adds to the confusion. Native title is a legal issue. By promoting native title for the mixed-race aborigines, the Catholic Church has involved itself in a cause, which is basically unjust. The Church should now take the responsibility to set the record straight. The problem might be in finding someone in the Church willing to break the news to the people of mixed aboriginal descent. It would be easier to dismiss what I have said as being………whatever………and avoid the issue, but I doubt the Master would approve of that.

 

Brenden T. Walters (MSC)

PO Box 13 Kensington. NSW. 2033

 

GO TO: The Catholic Church and the Dual Betrayal

 

 

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Written and Authorised by Selwyn Johnston, Cairns FNQ 4870