Gardner, Denise --- "Aborigines and Land Rights in Tasmania -- the Deep South" [1991] AboriginalLawB 53; (1991) 1(52) Aboriginal Law Bulletin 19
Aborigines and Land Rights in Tasmania – the Deep South
by Denise Gardner
The rejection of the Tasmanian Government's Land Rights Bill in the Upper House showed just how much Aboriginal calls for justice are heeded in Tasmania. The Bill, purporting to transfer title to 21 areas of land to the Aboriginal community, was rejected by two-thirds of the Upper House. Ironically, it brought instant applause from the Tasmanian Aboriginal Centre (TAC).
Underlying the TAC's refusal to support the Bill was the inexperience and lack of commitment shown by the Tasmanian Government in developing land rights legislation. The Bill tried to play both sides of the fence, making some token overtures to Aboriginal demands while at the same time seeking to appease the white interest groups opposed to land rights. The result was predictable. At best the Bill could have been seen as a token gesture of good will, but it was certainly not a contemporary response to the real and justifiable call from Aborigines for return of substantial parts of stolen lands.
The nature of the lands sought to be transferred with the passing of the Bill involved only 53 243ha. of Crown land. The lands identified fully in the Bill fell basically into the categories of: the Mutton Bird Islands, rock carving areas and burial sites. Of the two burial sites, one - Oyster Cove - has effectively been in the hands of the Aboriginal community since 1984 anyway. Although the rock carving sites were culturally important to the continued reculturalisation of Aborigines, they were quite 'out of the way' of existing Aboriginal communities. The Mutton Bird Islands were to be transferred to the Land Council in title only, subject to the leases currently in the hands of whites. Rather than provide entrenched rights to land for Aboriginal people, the Bill secured these leases for white people. Clause 6 states:
Existing lease and licences - right to renewal
1) Subject to subsection (4), if
(a) any land vested in the Council by section 5(1) was, at the time of the vesting, subject to a lease or licence; and
(b) that lease or licence expires by effluxion of time - the lessee or licensee has a right to be granted a further lease or licence of the land at a rent to be agreed but otherwise for the same term and subject to the same terms and conditions as the expired lease or licence (other than this or any other right or renewal).
2) If the rent to be paid under a lease or licence to be granted in accordance with subsection (1) cannot be agreed either party may at any time request the Valuer-General to assess a fair market rent, and the amount so assessed shall be the rent payable under such lease or licence.
3) An assessment of a rent under subsection (2) may provide for the rent to be assessed from time to time.
4) The Valuer-General is under no obligation to assess rent in accordance with subsection (2) unless the cost of carrying out the assessment has been paid or secured.
5) Subsection (1) does not apply in respect of the lease specified in Schedule 3.
Provided the white leaseholders annually applied for renewal of their lease holdings, the Land Council would be obliged to renew it. Thus, the very Bill purporting to provide Aborigines with land would, if enacted, entrench the interests of non-Aboriginal leaseholders and give them legislative backing to deny Aboriginal access to that land. These leaseholders had insecure tenure up to the time of the introduction of the Bill in that the leases were annual only and subject to the Government unilaterally refusing to renew them on expiry. In an extraordinary stroke of luck, and at the expense of Aboriginal people, these lessees stood to gain a legislative foothold over the Mutton Bird Islands for the rest of their lives. Here was legislative evidence of cultural genocide - deny Aboriginal people access to land on which cultural traditions have been practised for thousands of years, but call it Aboriginal land rights!
The Aboriginal community were likewise perplexed about which lands were included in the Bill and which were not. No-one quite knows who identified the 21 areas of land which were the subject of the Bill. Rocky Cape, Sundown Point and all unalienated Crown lands were omitted and the Government is not saying why.
From the outset the Government knew, or ought to have known, that a Bill specifically referring to the rights of Aborigines would require Aboriginal community support to have any chance.
Yet the Government got off-side with the Aboriginal community by initially denying the TAC delegates involvement in the development of the Bill, preferring instead the presence of the recently installed Tasmanian Aboriginal Land Council. Given that the TAC is largely recognised as the lobby group for Aborigines, and its efforts acknowledged as a real cause of the Government looking at land rights in the first place, this preference caused suspicion as to the Government's motives. It seemed the Government believed that the Land Council would be softer putty in its hands than the TAC. This suspicion was compounded by holding several meetings with white Flinders Island residents and the so-called outer Islands groups while not holding any meetings with the Aboriginal community. The final straw came when essential areas like Rocky Cape were omitted from the Bill.
The real lesson from this exercise is that if governments intend to provide a benefit for Aborigines they should proceed assuming there will be opposition - usually based on prejudice and misconception - and notwithstanding that, get on with it.
That the Government floundered throughout the exercise is nowhere more evident than when the Bill got to the Upper House. Pussy-footing about, the Government convinced itself that the Upper House would pass it by a narrow majority despite the widely-held view that the Tasmanian Upper House is one of the most conservative in Australia and very likely to reject any legislation providing benefits to Aboriginal people. During debate in the Upper House those opposed to land rights came out with such statements as the following:
"... we have up to this point lived happily and harmoniously in the land";
"they are sitting up at Rocky Cape. Do not worry, I have had a farm there";
and
"... this all means that the land restored to the Aboriginal people of Tasmania will come under the control of Aboriginal people on the mainland whose ancestors had nothing to do with Tasmanian Aboriginal people."!!!
Therein lies the yard-stick of the mental facilities at work in Tasmania's Upper House!
In essence, Parliament lost the opportunity to make some amends for the savage dispossession of land suffered by Tasmanian Aborigines. In proudly rejecting any compassionate grounds for giving back a little of the land stolen from Aborigines, the Upper House put its stamp of approval on notions of white supremacy. Its attempt to validate theft of land, denial of opportunity and continuing attacks on Aborigines by a process of 'logic', failed miserably, but Aborigines in Tasmania have had to resign themselves to the knowledge that any justice from the Tasmanian Parliament will only come with the removal of the bigoted grey-haired old men from their posts.
The Tasmanian Aboriginal community has benefited more from its own initiatives than from Government concessions. Some months before the parliamentary debate, the Aboriginal retaking of 3 000 hectares of Rocky Cape virtually made the Government's Bill and the views of the Legislative Council largely irrelevant. As the campaign pamphlet read:
"We have decided to repossess Rocky Cape ... If the only way to get our land back is to take it by force - as it was taken from us - let's do it! The only difference is that no one will be raped, killed or taken as slaves."
And so the Aboriginal push for. return of land goes on. With the Federal Government all but admitting to dumping Aboriginal land rights as a platform for action, and the Queensland and Tasmanian Governments having ended their meek efforts at redress, the Tasmanian approach of taking back land by squatting may lead the way on land claims throughout Australia. It certainly beats having to listen to the bleats and blurts of red-necked politicians.