Chapter 5 Learning from the international land reform experience

3 Country reviews 3.3 Australia 3.3.1 Brief background

The colonisation of Australia progressed on the assumption of terra nullius: an empty land that belonged to no one. In Australia, moves towards the restoration of ancestral lands to Aboriginal communities were initiated in the early 1970s, but only gathered momentum with the Mabo v Queensland no. 2 judgment of the High Court in 19921 and the passing of the Native Title Act of 1993. The Mabo decision overturned the terra nullius concept and the Act recognised that indigenous Australians had a system of law and ownership of their lands before colonial settlement. However, in striving to claim land, continuous connection with the land under claim has to be proved, and it cannot take away others' rights to land, including holding a pastoral lease or mining licence (O'Donnell 2003). While the mechanism for Aboriginal communities to claim their land rights has been established, these communities have been confronted by a complex legal process and their claims have been contested by powerful mining and farming interests. This has resulted in very few claims being processed – only 31 successful claims had been processed by the end of 2002 (De Villiers 2003). Native title in Australia is a ‘relatively weak right' that falls short of the practical needs of Aboriginal people for access to land (De Villiers 2003). Many Aboriginal people, who had high hopes for land reform since the 1992 Mabo decision, are reported to be disillusioned about the lack of tangible reform that has resulted from the native title process. The claim- driven process as embodied in native title has run into a wall of disillusionment, costly and protracted litigation, a continued breakdown of government- Aboriginal relationships, community conflict and an erosion of what could have constituted a sound basis for the recognition and protection of cultural rights of Aboriginal people (De Villiers 2003; 2004). Land claimants and beneficiaries in Australia face numerous challenges. Native title has to be proven through a litigious process due to the unwillingness of government in Australia to develop a sensible land reform policy. Claimants have to demonstrate that their laws and customs have survived sovereignty, continue to exist, and are still adhered to. This is a very high burden of proof which will be difficult to meet in many cases. Native title is constantly subject to erosion by the rights of others. It is at the proverbial bottom in the hierarchy of rights. Very few Aboriginal people will benefit from native title but it represents at present their only hope for some land reform. In case studies drawn from African countries, such as Zimbabwe, Namibia and South Africa, the State is seen as a partner in the land claims process, while in Australia the government is seen as opposing native title. This attitude is reflected in the post-restoration support that is given by the governments concerned. Unfortunately, the quality of evidence required by the government for a consent determination2 in many instances exceeds the minimum threshold for legal settlement, hence the small number of consent determinations. From an economic resources point of view, Australia is probably best placed amongst all four countries studied to provide sustainable post-acquisition support to new landholders, but there is a lack of long-term vision and political will to do so.