HERE is a profound line, surprisingly, in the film Crocodile Dundee. Dundee is asked by the American girl, “”Who owns this land?” He points at a rock and says words to the effect, “”Who owns the rock, when you die or I die, the rock will still be there?”
Richard Court is like the American girl. To him the land has to be owned. People have to have title so they can buy and sell land as an economic item. It is a mindset prevalent in North America and in Western Australia. And it explains (in so far as it can be explained) Court’s latest proposal to overturn the effect of the Mabo judgment that recognised native title in Australia.
Court wants to extinguish native title and replace it with a statutory right to traditional usage of the land. He says that if the use of the land is taken away from Aboriginal people (say through a grant of a mining or pastoral lease or through a grant of freehold) compensation will be paid. Existing titles (other than native title, of course) would be validated. He says the High Court never gave indigenous people freehold title so what he is doing is consistent with the High Court judgment. Like the High Court’s native-title ruling his new statutory right would give indigenous people the right to use the land in their traditional ways.
The value in his new scheme is that it would create certainty. Everyone would have precisely defined rights and titles. This would ensure economic development.
Court defends his statutory-rights plan as being no more nor less than what the High Court gave with native title. Well, if it is the same, why bother changing the native title for a new statutory right? The reason is that the statutory right will be something less. It will be something less because it will stand and fall on the say so of a Minister, not upon a court. It will create certainty _ but at the expense of justice.
The plan is driven by economics and displays a lack of understanding about Aboriginal attitudes to land. Mr Court’s frontier mindset about land has several elements: that land can be bought and sold; that title to land must be held by identified individuals who can sell it or pass it in a will; and that any notion of collective perpetual ownership is excluded.
This mindset says that it is acceptable to take land away provided you pay enough money in compensation. There is no room for a view that land is incompensible _ no matter what the figure, it will never be enough.
The mindset is strongest in places like Western Australia or like the US West late last century. Land for towns, mines, quarries or the railroad was there for the taking. Indigenous people were driven off and any white settlers in the way were just paid out _ no history, no roots, no attachment. Indeed, the mindset is greater in Western Australia because at least in the US there was more farming, closer settlement and smaller holdings which eventually gave rise to an attachment to land greater than its economic value.
The mindset is so powerful that Mr Court cannot seem to understand why anyone would want land other than to turn a buck. This is what freehold is all about.
The New World frontiers were populated by people from England and elsewhere in Europe who wanted a fresh start. Part of that was to leave behind the tangled history of land tenure which began with the King owning all, and holdings being dependent upon loyalty to a lord and provision of service (usually in war or to maintain a semblance of law and order with a civil and criminal jurisdiction). Holdings were not saleable; they were passed strictly down the male line (in fee tail). Common land, too, was unsaleable.
The economic imperatives leading to the Agricultural and Industrial Revolutions slowly changed that. The commons were enclosed and made saleable; fee tail was converted to freehold. But in the frontier world it was easier. The jump to land tenure based on money alone was made straight away.
The jump, however, was built on the fiction that the land was vacant. Mabo has changed that. Now the fiction has been exposed in common law at the national level, it invites conflict, uncertainty and challenge to legislate it back at the state level.
Within the narrow confines of the frontier society of Western Australian society, freehold is the be all and end all, but in the broader Australian context Crocodile Dundee has point in suggesting there can be no ownership of a rock.