International Law

Aboriginal Property Rights ?Down Under?

By Jakki Warkentin

Since I am currently “down under” visiting Sydney, Australia, I thought that this may be a good opportunity to look at a case that is presently before the Australian High Court involving Aboriginal property rights.

The former Liberal federal government, lead by John Howard, implemented a compulsory five-year intervention program in the Northern Territory whereby the federal government received exclusive possession of over seventy communities, including the Maningrida township in Arnhem Land, pursuant to five-year leases in an attempt to abolish child sexual abuse and reduce crime. Under this process, the Commonwealth introduced alcohol and pornography bans as well as welfare restrictions, took control of township leases, cancelled the permit system and increased police presence in the area. The present Labour government has continued this intervention program; however, it has been met with a large amount of resistance by Northern Territory indigenous communities, including the elders in Maningrida Township and the Bawinanga Aboriginal Corporation.

Reggie Wurridjal and Joy Garlbin, traditional land owners, challenged the constitutionality of the government’s lease over the township, claiming that it has stripped traditional owners’ rights to their land, stopping their flow of income by removing local assets and land from community control. Further, they assert that the takeover exposes sacred sights to the general public. The Aboriginal groups argue that the Commonwealth failed to acquire the land on “just terms”, which is a requirement under section 51xxxi of the Constitution. This provision states that any property acquired by the Commonwealth must be done on “just terms”.

The Commonwealth, on the other hand, is expected to argue that the takeover was not an acquisition of land. Even in the event that the court were to find that it is an acquisition of land, the Commonwealth will argue that the “just terms” provision of the constitution does not apply to the Northern Territory, as the High Court previously ruled in the 1969 case of Teori Tau that the Commonwealth was not required to pay just terms in the case of a property acquisition in an Australian Territory.

While the case is currently before the High Court, its ruling will have important implications for the Aboriginals who are subject to this intervention as well as the program itself. While the principles behind the program, abolishing sexual abuse and reducing crime, are important, the objection to the program is aimed at the perceived reduction of traditional owners’ rights to their land. As stated by Peter Danaja, the Bawinanga chairman, “We want to help the intervention succeed but number one is to have the ownership back to the traditional owners. It’s been completely stripped off.” … Stay tuned!

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Full post as published by The Court on October 07, 2008 (boomark / email).