Deceptive trickery of Native Title processes

Deceptive trickery of Native Title processes

A crime against our humanity is the way the Native Title process has been manipulated to further dispossess First Nations.
 
Parliamentary legislation and 'Native Title specialist lawyers' are in lockstep with the colonial power to rob Aboriginal people of their inherent rights and responsibilities to uphold the oldest continuing living culture on the planet.
 
Here on this island continent, now known as Australia, those wielding colonial power continue to promote Native Title in positive terms, well aided by the mainstream media, but the reality is a treacherous story of theft by trickery.

SU Media Release

Ghillar, Michael Anderson 10 October 2017

First Nations inherent sovereign rights are being grossly and repeatedly violated.

It is shameful that the parliamentary lawmakers and the lawyers who call themselves 'specialist Native Title lawyers' have complete disregard for the fundamental Human Rights of First Nations Peoples. The time has come for people to make a stand against these criminals who are making a complete mockery of the judicial process, while at the same time writing deceptive agreements that deny Aboriginal people the future right to challenge and appeal these major injustices.

Our Peoples have no protection against these wonton Human Rights abusers and violators, who can get away with this because our people are kept in poverty by the Crown and are without sufficient financial support that will allow us to make legal challenges to right these wrong doings.

On the other hand, there are some of our people who choose to take the easy road and do not want to create any form of confrontation over the breaching of our inherent sovereign rights. In other words, the two-bob mob are prepared to take what's on offer and shut up. This stems from the problem of losing pride, identity and dignity and/or being educated exclusively white-way and losing touch with core values of our Law and culture.

Independent action to free ourselves

I now make a call to all those protagonists, white and black, to lessen the damage that has been created by the likes of those who run 'reconciliation', 'recognise campaign', referendum council campaign', 'constitutional reform campaigns' and those who are prepared to be agents of the coloniser and be on their payroll.

One of our main antidotes to the scourge of colonialism is to take our own independent actions to free ourselves from the tyranny of oppression and injustice by:

  • Mapping our respective Nation's territorial boundaries;
  • declaring independent Sovereignty by way of Unilateral Declarations of Independence (UDIs);
  • designing and flying your own Nation's flag;
  • writing the code of laws, traditional constitutional rules and laws;
  • presenting them to the Crown and governments saying: "This is what applies to our Country/our Nation."

If Nations seek to incorporate both law-ways then it is time to negotiate Peace Accords or Treaties with each respective Nation.

We must now put paid to racially discriminatory legislation in all its forms and thereby end the scourge of colonialism in all its manifestations.

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A crime against our humanity is the way the Native Title process has been manipulated to further dispossess First Nations. Parliamentary legislation and 'Native Title specialist lawyers' are in lockstep with the colonial power to rob Aboriginal people of their inherent rights and responsibilities to uphold the oldest continuing living culture on the planet. Here on this island continent, now known as Australia, those wielding colonial power continue to promote Native Title in positive terms, well aided by the mainstream media, but the reality is a treacherous story of theft by trickery.

Native Title and Perpetual leases

We need to focus our attention on the Native Title Act yet again. One absolutely racially discriminatory factor comes when we consider that pastoral leases held by non-Aboriginal people, be they perpetual or 10, 20 or 40 year term leases, extinguish Native Title, whereas perpetual or term pastoral leases, held by Aboriginal people, do not extinguish Native Title and extinguishment is 'to be disregarded' which is stated in Section 47 of the Native Title Act:

When we look at this section and learn to understand it, it is very clear that any commercial pastoral lease owned by Aboriginal people, be it perpetual or other term leases, are to be completely disregarded for the purposes of Native Title, that is in direct contrast to non-Aboriginal pastoralists whose pastoral leases extinguish Native Title.

Perpetual leases akin to freehold

I'll focus on perpetual leases first. In the High Court Native Title case Wilson v Anderson 2002, which focused on Western Land Leases in New South Wales, the judges determined that perpetual pastoral leases are akin to freehold title and so extinguish Native Title. This decision created 'certainty' for the benefit of non-Aboriginal pastoralists, while trampling on Aboriginal Peoples' inherent sovereign rights yet again, extinguishing Native Title not only on freehold lands, but also on perpetual leases. In Wilson v Anderson the High Court judges stretched the truth by stating:

  1. … when regard is had to the genesis of the interest in land referred to in the Western Lands Act as a lease in perpetuity, and its affinity with freehold title, the inference that it was the intention of the legislation that the Minister should be empowered to grant leases which conferred upon lessees a right to exclusive possession of land is compelling.
    Wilson v Anderson [2002] HCA 29; 213 CLR 401; 190 ALR 313; 76 ALJR 1306 (8 August 2002)

This conclusion by the High Court makes a complete mockery of the judicial system, particularly when one considers that in this decision the justices of the High Court chose to ignore precedences that were set in earlier NSW Supreme Court cases such as R v Ballard 1829, R v Murrell and Bummaree (1836) 1 Legge 72; [1836] NSWSupC 35 and R v Bonjon 1841.

In R v Bonjon Justice Willis ruled that Aboriginal people remained 'unconquered and free, entitled to be regraded as 'self-governing communities'. Their rights 'as distinct people' could not be considered to have been 'tacitly surrendered'. As they were 'by no means devoid of legal capacity' and had 'laws and usages of their own', treaties should be made with them'. The colonists were 'uninvited intruders', the Aborigines 'the native sovereigns of the soil'.
[R v Bonjon, Supreme Court of New South Wales, Port Phillip District, Willis J., April 1841, Melbourne]

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The fact that the High Court ignores these significant Supreme Court cases shows the level of judicial bias and prejudice the judges invoke, in order to maintain white supremacy and thereby ensure the theft by deceit of First Nations Peoples' lands and waters.

If the High Court judges were serious about justice they would have at least checked the colonial historical records, which show that when issuing Crown land leases First Nations' rights were to be upheld, in the sense that Aboriginal people were to maintain their continuing rights, in particular the right to live on those lands, hunt, gather and do ceremony. It therefore follows that the judges deliberately, and conveniently, erred when they drew their conclusions that the Minister's intentions were such that he intended that perpetual leases were the same as freehold. This assumption lead to the ruling in Wilson v Anderson that Western Land Leases extinguished Native Title in the same way freehold title did. Once again Aboriginal Peoples' rights were trampled on, given that First Nations Peoples' rights were never genuinely considered after the 1841 R v Bonjon court case.

Now we return to the Native Title Act's Section 47, which discriminates by stating that any extinguishment of Native Title by a pastoral lease is to be disregarded, if the lease is owned by an Aboriginal person or persons. It is bad law and a law that cannot remain on the books because it deliberately racially discriminates against First Nations Peoples, by setting apart and denying our rights as opposed to the rights of non-Aboriginal people.

Term leases and Native Title

On the other hand, term leases, be they 10, 20, or 40-year leases, suppress Native Title for the period, but the Native Title becomes active again at the end of that term and negotiations are to commence in respect to the future of that land.

Native Title claim groups, and especially the Applicants, need to be very careful when the lawyers for the local Native Title Service or Native Title Representative body ask the Applicant group to surrender future claims in respect to land when concluding a Native Title determination. That is, these non-Aboriginal lawyers, who represent these Native Title bodies, do not make any distinction between the different classes of land, therefore too many of our people across this country are being requested by 'Native Title specialist lawyers' to forego their inherent rights to future claims and future acts over these lands. If this is the case, it is imperative for the Native Title Applicant groups to review their determinations and Indigenous Land Use Agreements (ILUAs) to ensure that these rights were not surrendered by taking advice from 'Native Title specialist lawyers', who generally act in favour of the State or development, rather than the claimant group.

My recommendation is that, if there are term leases within the claim area, the Native Title lawyers may have misled you and misrepresented a legal fact. They can do this and get away with it, because Native Title Representative bodies do not offer Applicants independent legal advice. In fact, they usually demand the claim group use the Crown's 'Native Title specialist lawyers' and legal services and fight to prevent Native Title applicants from employing the services of independent lawyers.

Right to independent lawyers

Most Applicant groups are not aware they have the right to their own independent lawyers, separate from Native Title Representative bodies. It is also important to understand that, if your People fit into this category, then it may be that the 'Native Title specialist lawyers' have failed in their fiduciary duties to have you correctly advised, thus making the Indigenous Land Use Agreement (ILUA) invalid, because the signatories agreed to something without proper independent legal advice.

What makes all this even more stark in terms of the Crown destroying First Nations Peoples' rights is not just the discriminatory factors, which destroy and suppress our rights, but the fact that in States like New South Wales the governments completely disregard the rights of First Nations Peoples in respect of all the massive reserves of Crown land, by offering up Crown land for sale to non-Aboriginal farmers and others, even though the Crown lands have been claimed under the NSW Land Rights Act 1985.

In West Australia the government chose to breach the legal processes as defined and required by the Native Title Act and completely ignored the Aboriginal Right To Negotiate when they granted the extension of pastoral leases that had expired and were up for renewal in the last two years. These governments can do this under the Native Title process by disregarding the fact that once the lease expired it then triggered section 29 of the Native Title Act, which meant that the Traditional Owners had a Right To Negotiate over future acts on those lands. Clearly governments do not care about our continuing First Nations sovereignty and inherent rights, nor any form of compensation that they are obliged to pay.

I repeat, one of our main antidotes to the scourge of colonialism is to take our own independent action to free ourselves from the tyranny of oppression and injustice by:

  • mapping our respective territorial boundaries;
  • declaring independent Sovereignty by way of Unilateral Declarations of Independence (UDIs);
  • designing our Nation flag;
  • writing our code of laws and traditional constitutional rules and laws;
  • presenting them to the Crown and governments saying: "This is what applies to our Country/our Nation." If Nations seek to incorporate both law-ways then it is time to negotiate Peace Accords or Treaties with each respective Nation.

We must now put paid to racially discriminatory legislation in all its forms and thereby end the scourge of colonialism in all its manifestations.

Ghillar, Michael AndersonContact: Ghillar Michael Anderson
Convenor of the Sovereign Union,
Head of State of the Euahlayi Peoples Republic
Contact Details here
Deceptive trickery of Native Title processes