Government Confusion and First Nations' Frustration

Native Title, The Poor mans Land Rights
('The details'll be along later' - Geoff Prior - Canberra Times 27 April 2007 - Image edited)
Media Release

24 August 2021

Confusion and frustration
Ghillar, Michael Anderson, Convenor of the Sovereign Union provides an insight into the contradictions regarding land tenure in Australia.

'Confusion' is defined by the Oxford dictionary as a noun meaning 'uncertainty about what is happening, intended or required'. The second way the Oxford dictionary applies its use and meaning is 'the state of being bewildered or unclear in one's mind about something'.

'Frustration', on the other hand, is defined by the Oxford dictionary as a noun, which means 'the feeling of being upset or annoyed as a result of being unable to change or achieve something'. The second defining factor is 'the prevention of progress, success or fulfilment of something'.

In our case, as First Nations Peoples, what we have in policy-making and programming in government circles is the absolute frustration of our people to get anywhere near our grassroots' aspirations and ambitions, because of the prevention of progress which stops us from succeeding and fulfilling these ambitions.

Why does this occur? One may ask.

It is simply because the governments are totally confused about where and how the military occupiers want us to fit within their autocratically ruled Australian society? Governments in Australia speak about educating us and training us, but they do not expect our people to use our education and knowledge against their military occupation. The colonial education system is designed with the purpose of training our minds to think like them, that is, assimilation by design and purpose. If they were serious it would be a bilingual, bicultural educational training.

Rosalie Kunoth-Monks Apunaga Elder, Utopia, Northern Territory

The oppressors' confusion comes directly from their fear of educating us to the point where we may think for ourselves and use their own words against them, thus challenging their pretended authority. Always remember their authority comes through the power of the gun. The police garrisons in our Country are trained to target our people, which they do with unrestrained brute force, handcuffs and tasers, which in many cases results in deaths in custody.

Now let me turn to the most confronting aspect of our current existence within this colonial military occupation of our lands. What is so telling and, for me personally, represents the voice of the hidden demon. This voice comes through the Full bench of the High Court when they ruled in the Mabo Case (No. 2) 1992 at paragraph 29:

'In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.' 

I ask readers to think carefully about this ruling because it says a lot about the judges' own uncertainty and the right to rule in this country.

In fact, the origin of the confusion lies in the High Court's ruling in Mabo (No.2) where the judges struggled to explain how the British Crown could claim the entire Australian continent without the monarch ever being in possession at any material time. The Crown's assertion of a claim of rights as first discoverers cannot stand in law. Additionally, there was no cession, no conquest and the land was NOT terra nullius, because First Nations had been in possession and ownership of the lands and waters for millennia with 'laws and customs of their own'. By trying to avoid the truth that the land was seized through genocide, massacre and clearing the land by rounding up First Nations into reserves, the High Court opted for the absurd notion that our lands were 'peacefully settled', which flies in the face of the overwhelming evidence of the mass killing fields of the frontier conflicts.

In international law 'peaceful settlement' is only possible if the lands are truly terra nullius. [See ICJ Western Sahara case, 1975 ]. The High Court's contradictory double-speak was articulated in 2006 by barrister Dr Ulla Secher:

Accepting that Australia was not, in fact, terra nullius in 1788, yet legally unoccupied for the purpose of acquisition of sovereignty, the High Court equated occupation of an inhabited territory with occupation of an uninhabited territory. Sovereignty was, therefore, acquired under the enlarged notion of terra nullius.

[Secher, Ulla (2006) The doctrine of tenure in Australia post-Mabo: Replacing the 'feudal fiction' with the 'mere radical title fiction' – Part 2, Australian Property Law Journal, 13, p. 162.]

I charge that the full bench of the High Court made a significant legal error when they wrested the law unto themselves to protect the skeletal framework of the illegal occupation by the Crown. This was best articulated by Justice Willis in the New South Wales Supreme Court in 1841 in R v Bonjon:

'…I am here as a Judge to declare the right, and not to have recourse to expedient, I can never permit the end to justify any undue means for the accomplishment. This may be policy and wisdom in a statesman, but is little less than treason in a judge. He must not Wrest the law to his authority, nor do a great right, through a little wrong.'

[Macquarie University Decisions of the Supreme Court of New South Wales 1788-1899]

So, the illogical ruling in Mabo to protect Australia's colonial skeletal framework is responsible for the confusion, which leads to our frustration.

The Mabo judgement with its mixed messages creates a great deal of legal uncertainty on a number of fronts. The Commonwealth government has, through the Commonwealth Native Title Act 1993 as amended, attempted to create a degree of certainty for First Nations Peoples about our continued use and occupation, but fails to recognise ownership under our Law and customary practices. On the other hand, the Act's main intent is to provide certainty for the illegal occupiers' false and fraudulent land titles.

Native Title, The Poor mans Land RightsFirst Nations people have always called for 'Land Rights' but even after the Mabo finding there was just a small bunch of rights offered in their 'Native Title' to some First Nations - and starting with former PM John Howard (illustrated), the Native Title rights have been watered down.
Cartoons: Left John Spooner, State Library of NSW (cropped & adapted). Right: Geoff Pryor, Canberra Times (adapted).

Native Title is determined mostly by consent between the native title claimants and the respondent governments. These consent determinations are deliberate actions by the individual colonial states to avoid the question and answers that were given in Western Australia v Commonwealth, [1995] HCA 47, which ruled that the establishment of the colonial invasion and the subsequent setting up of the Swan River colony did not extinguish any legal rights and interests of First Nations Peoples as first possessors and owners of the lands within the district of that colony. Nor did the establishment of Western Australia, as a self-governing colony with its own legislature, extinguish any possessory ownership or other rights and interests belonging to First Nations Peoples in that state. This same judgement also confirmed that, at the time of Federation, the Crown's assertion of federalism did not extinguish any possessory rights and ownership of our Peoples' own lands, waters, biodiversity and natural resources.

The introduction of the Commonwealth Racial Discrimination Act 1975 did not provide for the extinguishment of our ownership and possession, not just to our lands, waters and natural resources, but also to our ownership of our cultural heritage. The introduction of the Native Title Act and its subsequent amendments do NOT extinguish possessory rights and ownership of our Peoples' lands, waters, biodiversity and natural resources.

So, with this being the case we should be asking now, why in the world are we having to prove our connection to Country according to our ancient Laws and customs?

This is confusion!

Our frustration is this. After having the state consent to a native title determination, we gain an exclusive right to exercise power and authority over an area that is defined as exclusive possession, but these rights only include a right to hunt, fish and gather, build shelters, use the waters, to live a life in a manner that pre-dates British invasion.

The key element to this frustration (and throw in confusion) is the fact that there is NO land tenure title that is definitively registered as land being owned by the respective First Nations Peoples.

What may surprise and anger many of the readers is that the ultimate underlying tenured title to these lands is that they are classified and registered in the invader-usurper Land Registry Offices as 'unallocated state lands'.

Yes people, the lands that you have allocated by way of a native title determination is yours to use only, but you do not have an ownership title in your Nation's name.

So, then what does this mean in the long term?

The Racial Discrimination Act 1975 gives some protection from the colonial states' arbitrarily taking these lands and rights from you in respect of your native title rights and interests. If these rights are interfered with, then the Commonwealth constitution kicks in, along with the Racial Discrimination Act 1975. So, if they want to take the land from you now or in the future then Section 109 of the existing Australian Constitution applies, which requires them to pay just terms compensation. This constitutional requirement avoids the discriminatory aspects of the Racial Discrimination Act 1975, because the Commissioner of Human Rights will not say they cannot do it if they pay you just terms compensation, because governments will always argue that an action of this kind is in the 'national interest'. We lose.

On the other side of this coin, the consent determinations will always reserve the allodial title to the land in favour of the colonial state, but now we come back to confusion. The 1992 Mabo decision ruled that the Crown gained a radical title not a possessory title. The radical title obtained was by the invader state setting up an office for the purpose of recording registered land grants and through these registered land grants they allegedly 'legalised' the use of First Nations' property. This registered radical title cannot be turned into an allodial title, because there were First Nations inhabitants, who held possessory title and ownership under their Law and custom for millennia. This material fact is recognised by the common law system of the invader state, but is being ignored.

The full bench in Mabo (No.2) also ruled that the Crown of England did NOT gain a beneficial radical title (allodial), which means the Crown does not own the biodiversity or natural resources of the lands and waters. This material legal fact was also heralded in Stephen Davis' 1997 paper entitled Native Title: A Path to Sovereignty, chapter 11 in volume 9, Samuel Griffith Society of constitutional lawyers.

I have exhaustively researched this matter and have found that the lawyers, who deal with native title and land right issues, ignore English law Commentaries on the topic of lands occupied by native inhabitants who have possessory ownership of lands they have occupied for millennia. English common law does prescribe the methodologies of obtaining the transfer of title from the original owners of the land, but, as usual, Australia's legal system and their corrupt lawyers do what the colonialists have done all the time, that is, to say: Hell with it, it is what it is. Why bother agitating for justice and prosecuting wrongdoers within the system, which is controlled by the thieves themselves?

So, we as Peoples of the First Nations within Australia cannot and should not take our eyes off the prize. If we do it the correct way the colonial thieves' land title cannot stand.

Don't give up!

Ghillar, Michael AndersonContact: Ghillar Michael Anderson
Convenor of the Sovereign Union,
Head of State of the Euahlayi Peoples Republic
Contact Details here