IN the hopes of staving off decades of legal challenges over land claims, the Australian government last week acted to clarify a High Court ruling that opened the door to Aborigines regaining native land rights.
Prime Minister Paul Keating announced he would chair an 11-month consultation among Aborigines, the state, and industry in order to end uncertainties over the ruling.
"The nation now has the opportunity to address the fundamental issue of the place of Aboriginal traditional land ownership," Mr. Keating said. However, he added, "It's wrong to see the High Court's decision in terms of existing landowners losing their land," as existing property rights continue.
In June, the High Court gave the Meriem people and their leader, the late Eddie Mabo, full title to the Murray Islands in the Torres Straits after a decade of litigation. In its judgment, the court overturned a 200-year-old concept, terra nullius, which held that Australia was uninhabited at the time Europeans arrived and that Aborigines had no property rights.
The Mabo ruling recognized a new class of ownership, native title, for Aborigines. It did not give native title precedence over property rights, but created a new potential for Aborigines to claim land under Australian law. Some observers criticize the ruling because it did not define native title. Since the Mabo case was decided, six claims have come before the court by Aboriginal groups, some over land now owned by mining companies.
"We could see as soon as the decision was announced that there would be uncertainty created," says Geoffey Ewing, assistant director of the Australia Mining Industry Council, in Canberra.
Of more concern, he says, is the government's announcement that it may fund a number of test cases. "We think it's more likely to raise more questions and provide answers to fewer."
Reaction from Aboriginal groups was mixed. "It's good to see government doing what land councils have been saying for years, which is to seriously look at Aboriginal land aspirations on a national level," says Galarrwuy Yunupingu, chairman of the Northern Lands Council.
But Simon Blackshield, a solicitor with the National Aboriginal and Islander Legal Services Secretariat, disparages the decision, saying the decision failed to follow the argument to its conclusion: "If Australia was not terra nullius in 1788 [when the first penal colony was established] then according to the relevant legal principles at the time, Britain did not acquire any sovereignty over the continent at the time," he says. The final analysis, he says, is that Aborigines never lost their sovereignty.