Making Rights a Reality: The ongoing struggle for land justice in the Kimberley Region, Australia

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The situation for Aboriginal people and land rights in the Kimberley is a case study on the contradictory nature of Indigenous policy in Australia. The most vulnerable Australians have to fight – sometimes for decades – to be formally recognized under law as traditional landowners
  BRIEFING NOTE 26 SEPTEMBER 2016 Wajina Wunggurr Wilinggin Native Title claimants looking over their traditional lands in the Kimberley of Western Australia. Photo: Kimberley Land Council. All rights remain with the KLC. MAKING RIGHTS A REALITY The ongoing struggle for land justice in the Kimberley region, Australia ‘Governments in Australia seem scared to give Absrcinal people full rights to make decisions about their lands. We are a threat because we are vocal and demand our rights be respected. We are determined to keep fighting and to strip away the red tape that government uses to hold us back.’  – Cissy Gore-Birch from the Jaru and Kija Absrcinal Traditional Owner groups  1 INTRODUCTION The situation for Absrcinal people and land rights in the Kimberley is a case study in the contradictory nature of Indigenous policy in Australia. 1   The most vulnerable Australians have to fight – sometimes for decades – to be formally recognized under law as traditional landowners, only to come up against a wall of red tape, or in some cases outright discrimination, preventing the full utilization of their land rights. Today, Absrcinal people in the Kimberley region are calling for a full and fair realization of their Native Title rights, to enable them to care for their country, to practise their culture and secure their future. This paper highlights four examples of how the Western Australian government is actively undermining the rights of Absrcinal landowners in the Kimberley: 2  from threatening to force communities off hard-won homelands, to denying Absrcinal people the right to make decisions about their sacred sites and cultural heritage; from conservation projects that go against human rights principles and demand landowners surrender their Native Title rights, to actively campaigning against proven and popular traditional land management programmes that create jobs and help tackle climate change. The actions of the Western Australian government serve to deliberately undermine Native Title rights and interests, putting Absrcinal people at further disadvantage. Taken together, the examples set out below reveal concerning and systemic policies and procedures that undermine Absrcinal land rights in Western Australia, including economic, social and cultural rights protected under international human rights law. More broadly, they represent a government critically out of step at a time where there is a groundswell of interest from Absrcinal and Torres Strait Islander people and non-Indigenous Australians on how to confront their history and its enduring impacts meaningfully, and create a fairer, more equitable future that embraces, values and nourishes Absrcinal and Torres Strait Islander peoples and cultures. 2  BACKGROUND: NATIVE TITLE IN  AUSTRALIA   From the 1950s, Absrcinal and Torres Strait Islander people began grassroots activism to galvanize a political movement to have their rights to ‘country’ recognized in Australian law. For example, in the historic 1963 Yirrkala bark petition to the Australian government, Yolgnu people asserted their traditional land rights in protesting against mining on their country. 3  However, their subsequent court case failed, with the judge stating that Australian law had never recognized any pre-existing law of ‘communal native title’. In 1978, facing state-supported threats to mine sacred sites on Noonkanbah Station, Kimberley Absrcinal people came together to blockade access to the site, sparking national and international attention and support. This led directly to the formation of the Kimberley Land Council. Public petitions and protest, establishing a ‘tent embassy’ and numerous legal cases are examples of how people asserted their rights in the following decades. 4  Finally, in 1992 the High Court of Australia acknowledged that the British claims to Australia made two centuries before and founded on the British law concept of terra nullius  (empty land) were false. The Mabo Decision (as the High Court determination is now commonly known in recognition of the claimant Eddie ‘Koiki’ Mabo) was a landmark step in acknowledging that since the 1700s British colonialists had occupied  Absrcinal and Torres Strait Islander peoples’ lands without any recognition of pre-existing law or land ownership, and without any agreement or treaty. 5  In response, in 1993 Australia legislated a new communal property right called Native Title, providing an avenue for Absrcinal and Torres Strait Islander people to have their traditional land rights recognized. 6  The recognition of Native Title was a historic moment in challenging centuries of dispossession and a testament to the tenacity of people’s struggles in defending and caring for country. Today many Australians believe that Native Title has delivered land justice for Absrcinal and Torres Strait Islander people. This is only partly true. The reality is that it can take 20 years and millions of dollars fighting through the court system to have Native Title recognized. Cases are often unsuccessful and many people have found that they cannot secure Native Title rights – as they have been legally extinguished by competing interests, or claimants cannot meet the burdensome evidentiary requirements. 7  Additionally, the 1993 Native Title Act has been repeatedly amended and consequently weakened, perpetuating uncertainty for Native Title landowners. ‘We continue to ensure that our land, law, language and culture lives on and continues to be vibrant and long-lasting. We do this by getting back our country, looking after our country and securing our future.’  – Kimberley Land Council 3  Box 1: Connection to country In Australia, Absrcinal and Torres Strait Islander people refer to their traditional lands as ‘country’. Kimberley Absrcinal people maintain a relationship to country in accordance with traditional laws and customs which dictate how decisions that affect land must be made. The concept of country includes the physical landscape, fresh water and salt water, mythological manifestations in the land, and personal and familial connections based on historical events. Simply put, the Kimberley is a cultural landscape – every part of country is alive, occupied and cared for in accordance with traditional obligations. For those who have achieved Native Title recognition, the battle is now to have their Native Title rights fully realized under the law. This is proving a disappointingly difficult task as Native Title holders face a range of challenges. In Western Australian, the government continues to hinder the rights of Absrcinal people through laws and policy that undermine Native Title rights and interests and obstruct opportunities for Absrcinal people to use these rights to improve their lives and well-being. THE KIMBERLEY The Kimberley region in Australia’s northwest is a vast, wild and ancient place. Absrcinal people and culture date back more than 50,000 years to time immemorial, and are embedded in the landscape with its rugged coastline, rocky outcrops, sandy deserts, rushing tides, deep gorges, waterfalls and rivers.  At approximately 423,517 square kilometres – or about the size of California – the Kimberley is one of the most sparsely populated regions in the world, home to 46,000 people, of which some 43 percent are  Absrcinal. The wet season runs from October to March, when tropical rains with high humidity produce heavy rainfall, causing widespread flooding which makes movement around the region challenging. The dry season is cooler and less humid, bringing an influx of tourists. The area is rich in biodiversity, with the North Kimberley listed as one of  Australia’s biodiversity hotspots – unique in its diversity of endemic species and intact natural ecosystem. In 2011 parts of the region were included on Australia’s National Heritage List 8  – the first such listing to occur with the full, free, prior and informed consent of Absrcinal people. The region has eight Indigenous Protected Areas 9  (IPAs) covering more than 90,000 square kilometres (roughly the size of Portugal). These IPAs are managed by Absrcinal Traditional Owners, using traditional knowledge to conserve sacred cultural sites and ecosystems, and resulting in an interconnected habitat corridor. 10  Much of the region’s economic drivers are land-related industries – such as mining, tourism, conservation reserves, pastoralism and agriculture. While this signals potential for Native Title holders to direct economic development on their land in accordance with their priorities and values, 4
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