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