Recently, my colleague Eve Vincent and I wrote an explainer piece for The Conversation about ‘green-black alliances’ in Australia. As many times before, while putting together that piece Eve and I debated over the details of Indigenous land rights in Australia (meaning, specifically, only those land rights recognised within settler legal regimes, not land rights as they exist in Indigenous law) and their social and legal context. This is not only a question of ‘how much do [non-indigenous readers] need to know?’ but also ‘how much will [non-indigenous readers] tolerate?’ On plenty of occasions, people have demonstrated to me in Australia and Aotearoa that, even when their initial interest is genuine and enthusiastic, their actual capacity to take in information about Indigenous land rights is brief, limited, or short-lived. Over and again, casual conversations where I’ve tried to explain the native title ‘right to negotiate’ have moved from engaged interest to borderline narcolepsy. I’ve varied my approach but the results are pretty consistent. Unsurprisingly, editors have told me on several occasions that this is exactly the material to cut from written work.
There are plenty of possible reasons for all this: legal technicality is boring; I’m boring; people are just being polite in the first place. My own preferred explanations are the following:
- Pedagogy: I’ve never encountered a non-indigenous person, let alone a 1st-year university student, who had gained any knowledge of the basic tenets and features of native title (or similar forms of recognised land rights) from their pre-tertiary schooling. This is not to say that writing such information into national curriculums would be a fix (see: Aotearoa), but that it would help establish pathways of interest in it and the wider expectation that one ‘should’ know about it.
- Complexity as tactic: this is nothing new to the critical legal scholars out there (or readers of James Ferguson, Tania Murray Li etc.), but it is clear in this instance – as in many others – that the complexity of native title (or similar forms) serves the purposes of settler administrators and settler power. Its technicality and jargon create both forbidding barriers to critical engagement while, conveniently, depoliticising its processes and features. It has been designed and developed to appear as both a form of reparation (it’s not!) and a neutral system of administration (‘the way things are’), attended by networks of well-paid experts inside and outside government.
In sum, this permits, or at least creates the conditions for, any number of the absurdities of the present situation. The list of absurdities includes the misconceived notion, demonstrated in the present dispute over Adani’s planned Carmichael coal mine, that native title in any way jeopardises mining investment in Australia. This is an old and reliable line developed and utilised by Labor and Liberals alike. In the 1990s, mining executive decried native title as ‘the biggest disaster for [mining] investment that has ever been visited upon us in this country’. However, as Lavelle showed (see: Lavelle, Ashley. 2001. “The Mining Industry’s Campaign Against Native Title.” Australian Journal of Political Science 36 (1):101-122) investment in mining ventures did not abate before or after the Mabo and Wik decisions. This is, in part, due to the ‘pincer’ publicity strategy by the mining industry in the 1990s and after, representing native title as a mighty legal right, and thereby a terrible burden on business and productivity, while also representing themselves as singular benefactors (or ‘partners’, philanthropists, etc.) to Indigenous peoples. Governments, including the Turnbull administration, have been happy enough to go along with this story, further weakening Indigenous land rights anytime they become inconvenient. But, fundamentally, behind the blather about ‘market uncertainty’, the facts are that a) native title holders cannot legally say ‘no’ to resource extraction from their country (they should be able to, though, obviously), and b) there is little good evidence that mining is financially beneficial to native title holders overall.
This argument, and much more besides, in laid out in David Ritter’s excellent 2009 book Contesting Native Title. However, the continuing level of disinterest and ignorance about the legalities of Indigenous land rights in Australia makes me think that we need more people – academics, journalists, activists – writing accounts of those rights that are once critical, grounded, straight-forward and compelling.