Court Paves Way for Aborigine Claims on Huge Tracts of Land

As Australians celebrated the arrival in 1788 of the first British settlers on the island continent this week, a long-hoped-for reconciliation between Aborigines and the white majority seemed as elusive as ever. While many soaked up the Australia Day sunshine Jan. 26, indigenous and political leaders were engaged in a battle over land rights.

On Dec. 23, the High Court of Australia overturned the long-held assumption that Aborigines have no claim to government-owned land leased out for farming and mining activity (pastoral leases). Up to 40 percent of Australia is leased land.

In a 4-to-3 decision, the High Court ruled that native title can hold on pastoral leases, paving the way for Aboriginal land claims. But the leases will have primacy over native title when a conflict between the two occurs.

Aborigines rejoiced, but the decision was criticized by farmers and the mining industry, which called it "the worst possible outcome."

Now Prime Minister John Howard, in an effort to protect farmers' and miners' rights, has suggested amending the Racial Discrimination Act of 1975 to override the High Court ruling.

Such proposals have been attacked by Aborigines, who say any moves to change the act will attract worldwide condemnation.

Angela Chan, chairwoman for the Ethnic Communities Council of New South Wales, told The Australian newspaper the act "protects all Australians, and for the government to even consider meddling with it would be in virtual contempt of their international obligations."

The origin of the land-rights debate dates back to the first British arrival in Sydney Cove. Britain declared Australia "terra nullius," an uninhabited continent, and proceeded to settle it without regard for Aboriginal land claims.

It took 204 years before the terra nullius concept was legally overturned with the High Court's recognition of native title in 1992.

In 1993, the government enacted the Native Title Act, which states in a preamble that pastoral leases extinguish Aboriginal land rights. When elected last year, Mr. Howard said he would amend the native title law but promised changes would be consistent with the Racial Discrimination Act. Now Howard says he had assumed that pastoral leases were safe from Aboriginal claims.

Politicians in Queensland and Western Australia, where up to 70 percent of the land could be affected by Aborigines' claims, are leading the effort to protect the pastoral leases. Their opponents warn that laws extinguishing native title will lead to lengthy court battles and potentially heavy financial compensation to Aborigines.

Some are seeking solutions that are neither legislative nor judicial. The Cape York Land Council, which represents Aborigines in Cape York, Queensland, has made an agreement with the Cattlemen's Union on a set of principles to ensure that they are not commercially disadvantaged. Other Aboriginal land councils are offering a three-year moratorium on their title claims on pastoral leases to help negotiations.