Another Economy in Australia

14 July 2018

There’s always been an economy in the lands now known as Australia. Well maybe not always, but for at least 60,000 years.

In 1788, when the British first started dispossessing the Rightful Owners of the soil, the Crown imposed a different legal and economic system onto these lands.
By settlering as if onto a Terra Nullius, the imposed economic order displaced and discounted the Traditional Economy, impoverishing the Traditional Owners.

In 1993, as a response to the Mabo Decision, the Keating Government legislated for Native Title. This was a quick political fix to try to stabilise things when the Mabo Decision was reported as “overturning Terra Nullius” and jeopardising the standing of the Settler State. “Look out for your backyard”, the politicians screamed, to maximise a fear campaign and to Race bait.

Native Title, as it turns out, after years of fighting to get the Crown to acknowledge inherited Rights, leaves people with a very limited form of Property Title.

Not only does it seem contradictory that the newcomer Crown grants out a Title to the peoples already here, but the “bundle of Rights” that the Crown grants out restricts what can occur on the Native Title after it is granted. It seems that all that’s allowed is “hunter-gatherer Rights” and the Right to practise Culture. These restrictions are inherent in the structure of things, as imposed since 1788 by the legal and property law regime that presupposed the lands to all be Crown Land.

Exclusive Use Native Title only applies to tracts of land where the Crown has not interfered. Thus, any development on Native Titles lands becomes problematic, since it involves the Crown interfering when it grants a Planning Permit. But if such permits are granted by a non-Crown entity, development can occur on Native Title lands while still keeping the Native Title intact.

Until this occurs, the Original Economy of these lands is suppressed, denying Indigenous Peoples their Right to self-determination and kept dependent on some crumbs from the Crown’s Economy.

Surrendering more land and forced assimilation into the Crown economy is seen as the only option.
But it needn’t be like this.

The History of First Nations Trade is now recognised by the Crown Courts as being an ongoing Cultural Right.

Trade with China

A dried trepang specimen collected in the 1960s. The edible sea cucumbers are usually 10 to 50 centimetres long. Photo: George Serras.

By the mid-19th century the fleet from Makassar that visited Arnhem Land each year was supplying about 900 tons of trepang – about one-third of the Chinese demand. By the end of the 19th century, visits from Makasar to northern Australia to gather trepang were declining.

After 1901, the newly formed Australian Government banned trepangers from Makassar in order to protect Australia’s ‘territorial integrity’ and to encourage a local trepang industry. In 1907, the last prau from Makassar visited Arnhem Land.

Such trade was banned by the Government.

In 2003, at a joint sitting of the Senate and House of Representatives in Canberra, Chinese President Hu said

”Though located in different hemispheres and separated by high seas, the people of China and Australia enjoy a friendly exchange that dates back centuries. The Chinese people have all along cherished amicable feelings about the Australian people.

Back in the 1420s, the expeditionary fleets of China's Ming Dynasty reached Australian shores.

For centuries, the Chinese sailed across vast seas and settled down in what they called Southern Land, or today's Australia. They brought Chinese culture to this land and lived harmoniously with the local people, contributing their proud share to Australia's economy, society and its thriving pluralistic culture.”
taken from

Since that time, the Chinese Government have embarked on a major trading push, the Belt and Road initiative.

It seems that the Papua New Guinea Government as well as many other Indigenous led Nations in the region are signing up to access this new trade system.
But not the Australian Government..

In light of recent Native Title determinations, even if the Foreign Power occupying your lands doesn’t seem interested in China’s Belt and Road initiative, there’s no reason why Indigenous Peoples cannot get involved. Trade is a Cultural Right, as confirmed by recent Native Title determinations.
See here and

It is a cultural right to trade, and as such, need not incur taxation imposed by the Australian Tax Office which wasn’t established until 1901. This then allows for a competitive economy to be established alongside the Crown Economy, since it’s administration can be paid for by a transaction levy. The Peoples indigenous to the lands now known as Australia have a cultural right to trade, both with other Sovereign First Nations, and Internationally. Additionally, re-establishing the Original Economy is a means to protect Cultural Copyright.

In 2011, Rio Tinto (who are often referred to as”the Queen’s Miner”) sponsored a major exhibition in China focussing on the Trepang Trade from Yolgnu and other north coast peoples, and China, so it’s not as if the Chinese are unaware of the situation

The Native Title dilemma.

One of the peculiarities of Native Title (1993), as granted by the Australian Governments, is that the Crown over-rides the Native Title when it interferes. Interfering can be as simple as the Crown issuing a Planning Permit.

It’s as if Native Title only recognises the Owners’ Rights to be hunter-gatherers. Developments like new housing which require a Planning Permit are seen as the Crown interfering, thus the Native Title for that piece of land has to be extinguished before Planning Approval can be given.

The whole “Futures Regime” was developed at the time of Native Title to allow for compensation for the extinguishment of the Native Title, so that development can occur.

Thus the Government created ILUAs. Indigenous Land Use Agreements, where compensation for loss of land is paid by a miner or by the Government, depending on the type of development intended, when land has to be excised from the Native Title.

Additionally, in Australia, a house without a planning permit is near impossible to finance, since banks don’t like to lend money for a house without it having planning approval. This is how the Governments control any development on Native Title lands, since they impose 99 year or 40 year leases, which give the Government control. This leaves the Traditional Owners with little choice but to agree to mining and/or Government leases over parts of their land, or to starve.

But such encumbrances which stifle development on Native Title lands only apply if the planning approval and financing is done by the Crown. Thus, developing economic ties with non Crown sources, such as most countries in the Belt and Road initiative, avoids the Crown’s road block to development, which then frees the Traditional Owners to develop their estates as they see fit. This then opens up other options for development on Native Title lands, rather than be solely dependent on compensation for loss of sections of the Native Title.

Even though the Wik Decision made clear that a bundle of Rights co-exists with Crown issued Pastoral Leases, these Rights are also restricted to “hunter-gatherer and ceremonial Rights”.

I can imagine that the Settler Governments will not be pleased should this come about, however, they are not able to facilitate developments on Native Title lands, due to the mess created by the Crown’s claim over these lands, as if the lands were Terra Nullius.

To maintain it’s own credibility in the Mabo Decision of 1992, the High Court decided that “paper covers rock”, that is, a Crown issued piece of paper called a Property Title trumps original ownership. This is why development requiring permits extinguishes the Native Title since such permits are the Crown interfering.

Should a non-Crown source offer Planning Approvals and finance, it is not difficult to ensure that any relevant planning provisions required by the Crown Governments can be matched, but as long as the permits are not done issued by the Crown’s Governance System, Native Title doesn’t need to get extinguished. Traditional Owners can then determine what forms of development they want on their own lands.

Cultural Rights sit above the Crown’s claim, and the right to trade and the right for families to live on their inherited Estates is a fundamental Right, as is self-determination for Indigenous Peoples. Her Majesty’s Governments in Australia are unable to deliver these fundamental Rights because of the way the Mabo decision was decided, as if “Crown Paper covers Rock”. But such hindrances to self-determination can be avoided through International non-Crown sources, which will supplement the dominant Economy, better protect Cultural Copyright and re-set the power imbalance between the Settler State and the Peoples indigenous to the lands now known as Australia.

by Graeme Taylor
who is keen to see the development of a system to facilitate the re-establishment of continent wide and international trade for First Nations’ Peoples.