[Contd.]

[Paragraph Title] "Rights Now Safeguarded"

"When the Northern Australia Act was repealed in 1931, the separate territories of North Australia and Central Australia were abolished, and the Northern Territory as formerly was reverted to. A new Crown Lands Ordinance No. 2 of 1931, which repealed the ordinances of North Australia and Central Australia, was passed, and this ordinance is the existing law under which pastoral leases may be granted throughout the Northern Territory and the reservation in favour of the aboriginals [page 37] has been carried forward and applies to all such leases. It will be seen, therefore, that Mr Bleakley's remarks are not correct as they refer to leases recently issued. However, the matter will ultimately correct itself, as, when the existing South Australian leases and those granted under the Crown Lands Ordinance 1912-1913 expire with the effluxion of time [i.e. after a maximum of 42 years from issue] or are sooner determined, any new leases granted over the lands formerly included in the old leases will be issued in accordance with the existing law and be subject to the reservation."

I hope that answers your question, Jim.

The reference to Mr Bleakley's Report of 1928 needs some explanation: Bleakley was a Protector of Aborigines in Queensland at the time and had been asked to carry out a survey of Aboriginal conditions in Northern and Central Australia [i.e. the Northern Territory] by the Commonwealth government, and recommend action, mainly against the Chinese, and whether to move populations away from Alice Springs as the Railway from Adelaide was being completed [i.e. in 1929] [hence the setting up of Jay Creek]. If you are interested, I have a copy of this Report typed up.

Joe

Thanks for the References Joe.I will try to delve deeper into the morass of what was [Practical ]Disposession ,in spite of the "Clauses of Occupation Rights ."
It is hard to believe then with all this proof, that the High Court would go only 4 to 3 in favour of Native Title ??!
What were the Nationals and Liberals Arguments that made it so difficult for the Judges' Wik Decision ?
And THEN to have the Guts of the Decision removed by the Fascist Howard and Crew . Fear Tactics on top of Fear Tactics by the Liberals and Nationals .
Our farming Neighbour was spreading the word that the local Footy and Show Ground was going to be taken away by maurauding Blacks and their High Court Judge Sympathisers !
I enc. a note from Paul Keating today which you may have already seen.
http://www.theage.com.au/opinion/politics/squatters-native-title-and-the-fight-for-indigenous-land-rights-20110531-1fel0.html

Thanks Jim,

For the life of me, I don't understand why lawyers and law professors haven't talked about this clause in all pastoral leases: I'm not in any way a legal professional, but I've come across this stipulation in about half a dozen various places,

- in the SA 1899 Royal Commission on the Aborigines,

- in an article in about 1999 in either the Aust Jnl of Politics or the Aust Jnl of Hist, something like that, about leases in Victoria (where the author casually mentions that the condition affecting pastoral leases there was universal across Australia),

- in the Schedule (I think it was) of the SA 1989 Environment Act,

- in schedules and ordinances to various Pastoral Acts (and maybe in Crown Lands Acts too) here in SA, and

- in Bleakley's 1928 Report.

I've seen a copy of a Pastoral Lease (issued in about 1903) in the papers relating to the Pastoral Board, in the State Records Office.

It's not as if nobody else could ever come across any of this material if they were looking for it, and they were competent: surely some lawyer somewhere must have come across it. God knows what must be in every law library in Australia.

What the hell were those lawyers doing, advising Aboriginal groups on the basis of 'you got nothing, start from there' ? And charge $ 200 per hour ? Nice work if you can get it.

Joe

It's a clause which was inserted into pastoral leases in South Australia from 1851: http://www.nfsa.gov.au/digitallearning/mabo/info/SALeasesWasteLandCrown.htm.
Similar concessions were made elsewhere.

It gives rights to:

• full and free access into, upon, over and from the said land

• except such parts as improvements have been erected upon and

• in to the springs and surface waters thereon and

• to make and erect wurlies and other native dwellings and

• to take and use for food birds and animals ferae naturae as if this lease had not been

http://www.aiatsis.gov.au/ntru/docs/publications/issues/ip94n1.pdf

... and nothing more, which state governments, including those which never inserted the clause into pastoral leases, have largely extended to Aborigines for decades.

If you're an Aboriginal inmate of a prison in NSW every xmas day you're offered a feast of native game including goanna. Only Aborigines are permitted to eat goanna in the state.

To assert, as does Loudmouth, that the clause somehow overturns terra nullius is a fundamental misunderstanding of the law. Overturning terra nullius was about establishing that an indigenous population had a pre-existing system of law which survived. The ability to make and erect wurlies and to take and use native birds and animals for food, on it's own, has absolutely nothing to do with establishing pre-existing law.

To further assert that thousands of those committed to the cause of assisting Aborigines in achieving recognition at law whilst besieged by an onslaught of racism, "that the local Footy and Show Ground was going to be taken away by maurauding Blacks and their High Court Judge Sympathisers", for instance, were actually deluding Aborigines because Aborigines already had the right to behave like fauna, is a significant insult to the memory of many heroic Australians.

There has been recent speculation in South Australia over the 1834 Foundation Act with regard to Aboriginal rights but not in relation to the clause. http://www.reconciliationsa.org.au/learn%20letterspatent.html

Neither is Paul Keating's commentary about the clause, but pastoral leases per se.

Thanks Whistler,

So - at least in South Australia, but probably in other states, if not in all of them - governments recognised the rights of Aboriginal people to carry on their daily lives as before. The catch would have been that they had to share the land with other users.

A pastoral lease was (is) very specific about how the land can be used under the terms of the lease: a lessee cannot farm, or cultivate the soil except on his/her one-hectare household block - they can only pasture animals. I'm not sure but possibly a pastoral lease will specify either cattle or cheep (or some other livestock) but it won't be a blanket entitlement.

So I don't know what you mean by " ... and nothing more". Don't the rights recognised mean something to you ? Of course, they did not include the right to exclude, they forced Aboriginal people to share the land, but what was recognised was surely far more than 'terra nullius' ? Imagine if Aboriginal groups in the nineties and since then had started to negotiate for more rights to land, on the basis of what rights were already recognised ! i.e. if what rights were already recognised had been the basis for the recognition of 'pre-existing law' !

And you really are being silly to talk about already having 'the right to behave like fauna'. That demeans Aboriginal traditional culture totally.

My point has been that Aboriginal people always had far more land-use rights than 'nothing', over pastoral leases and Crown Land, and it is a tragedy that negotiations post-Mabo were not carried out on that basis.

Loudmouth, the clause, and certain concessions elsewhere, gave Aborigines the same protection as native birds receive today to build nests and forage for food. The Mabo decision overturned terra nullius, the legal basis for the clause, so it has no legal or moral relevance in the post Mabo environment. The suggestion negotiations should proceed from matters which arose when one side viewed the other as fauna is disturbing. Aboriginal culture has never been demeaned by the permutations of European law and never will.