The History Wars by Stuart Macintyre

Author:Stuart Macintyre
Language: eng
Format: epub
Published: 2013-05-22T00:00:00+00:00

The first item of Keating’s Redfern Park declaration was that ‘We took the traditional lands and smashed the original way of life’. These would seem to be indisputable statements of historical fact, for no-one denied that Aboriginal people had been deprived of the resources that supported them when pastoralists moved into the plains and valleys, farmers cleared the land for cultivation and miners consumed the forests. It was the official recognition of this dispossession that created conservative resistance. Land rights legislation and the decisions of the High Court provided avenues for Aboriginal claimants to seek restoration of their land, and did so on the basis of their prior occupancy and ownership.

The finding of the High Court in the Mabo case aroused particular indignation, as we have seen, and much of it was ill-informed. Geoffrey Blainey read the judgement of Justices Deane and Gaudron out of context to rebuke their historical ignorance, while Geoffrey Partington published a tract on The Australian History of Henry Reynolds to show that it had misled the court. Other critics condemned judicial activism as an undemocratic usurpation of the role of parliament. Tim Fischer spoke of the need to ensure the appointment of ‘capital C Conservatives’ to the bench, seemingly oblivious of the unconservative character of this assault on the court’s independence.

The effect of the Wik decision in 1996 was to renew an alarmist campaign that pastoral leaseholders would be turned off the land they had made productive. ‘We must have certainty’, insisted organisations representing farmers who wrestled each year with the vagaries of nature and had recently thrown over their regulatory protection for the uncertainty of a free market. The Howard government was able to persuade independent members of the Senate to accept enough of its 1998 Native Tide Amendment Act to circumscribe the court’s decisions.

The earlier land rights legislation of the Commonwealth placed a particular emphasis on traditional occupancy. It required claimants to be members of a ‘local descent group’ with a ‘common spiritual affiliation to a site on the land’ who could demonstrate that they had maintained their links to it. This definition restricted its application to areas where the impact of European occupation was light, and precluded those urban Aboriginals whose original way of life, as Keating put it, had been smashed. In practice, claims relied heavily on anthropologists and linguists who could help establish customary ownership.

Henry Reynolds claimed that after Mabo a different sort of expertise was needed. ‘The post-Mabo world’, he wrote, ‘requires historians who can establish if, when and how preexisting native tide had been extinguished’. He drew attention to the operation of the Waitangi Tribunal in New Zealand, which required a similar knowledge of the past and was the largest single employer of historians in that country.

His confidence was misplaced. The National Native Title Tribunal is not a court, though the parties that appear before it have legal representation. The tribunal is certainly interested in establishing the historical circumstances of native title since it requires applicants to show the continuity of traditional law and custom.

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