Background To Landlessness
by Charles Lane
Land and Culture
Land is central to cultural identity as much as it is to economic subsistence. This is as true for East African Pastoralists (Barabaig and Maasai among others) as it is for Aboriginal Australians.. Together they share similar aspirations and the are joined in a struggle for recognition of their customary rights. Land is the symbol of self-determination, and the call for land rights is their most clearly articulated demand.
Despite this unity of purpose they are at the same time separated by the vast distance, and as a consequence they have hitherto made little contact with each other. This has denied them the chance of meeting and capitalizing on the opportunities afforded at a time when their respective governments have been or are currently party to test cases and engaged in major reviews of land policy and the drafting of new land laws.
The occasion of the new millennium also offers an opportunity for all indigenous peoples to reflect on their circumstance. For nearly 800 years of this millennium they were able to enjoy their lands and little intrusion, but with the arrival of Europeans that security was dramatically eroded. Now is the time for them to shed the shackles of past injustices and unity in efforts to ensure that the beginning of the next millennium will differ form the end of the last. United they can work together and better influence what happens in the millennium celebrations, and ensure that a ruling elite don not dominate the event such that the interest and needs of the dispossessed are forgotten.
Common attributes
Despite differences in their cultures and forms of production Aboriginal Australians and Pastoralists are joined by their relationship to land. Bother cultures have complex communal land tenure systems that facilitate movement and control over resource use. 'Ownership' is vested in those people who are joined by kinship links, religious and cultural affiliation.
In both cases protection of land is as important as its use. Rights of access are measured against obligations to care for and protect land form abuse - particularly features with spiritual significance. This becomes crucial when land is occupied by others and used in a way different to indigenous peoples and without knowledge or respect for its cultural or spiritual attributes.
Similar experience
On both continents the arrival of a colonial power resulted in land being occupied by force. In both cases acquisition by the colonial authorities was tantamount to the extinguishing of existing title. In East Africa legislative provision was made for respect of customary rights to land, although in reality these rights have been regarded as inferior by the courts and easily ignored by administrators to provide land to settlers, for use in government schemes and for conservation.
In Australia this was taken to its logical conclusion with the doctrine of terra nullius ("empty land") that was until recently denied recognition of any prior rights to land following the arrival of the British colonists in 1788.
Defence of indigenous lands has proved difficult on both continents. Neither peoples mark the land to any great extent, and as they both move about the landscape they leave areas unoccupied sometimes for long periods. This makes their land vulnerable to claims that it is 'vacant' and available for the taking.
In commercial terms the conferring of land rights to Aboriginal Australians is thought by some to be 'locking up' the land and obstructing commercial development particularly by mining and grazing interests. The perception that Pastoralists are under-utilizing the land justifies it being put to non-pastoral use. In addition it is still a widely held view of planners, possibly as a matter of convenience, that pastoral land use is destructive of the environment and despite theoretical and empirical challenges to this perception it is still being used to justify appropriation of land.
The struggle to assert customary claims to land is regarded by both Aboriginal Australians and Pastoralists alike as a matter of right, not simply reparation for damages caused by past losses. Neither people want compensation alone.
They not only want respect for their rights, they also want freedom to enjoy those rights to sustain their cultures and participate on equal terms with others in national life.
On both continents there are examples of lands being held in trust for indigenous residents as, for example, with the Deeds of Grant in Trust (DOGIT) in the state of Queensland, and communal Trust Land under the authority of County Councils in Kenya. In both cases this has conferred less than secure title. Trusteeship has all too often been interpreted to mean that it is to serve the interests of trustees.
Indigenous land rights' claims will not go away in Africa or Australia; the issue needs to be resolved if the state is to be fair to all citizens, be free of pressure and adverse publicity it attracts, and native peoples are able to establish themselves as fully participating citizens of contemporary nation states and in greater command of their own destiny. The cost of failure is the loss of entire cultures, the impoverishment of whole sections of society and destruction of their lands.
Important differences
Differences in the circumstances of struggles for land on both continents are instructive and useful to each group of peoples. Each has something to teach the other and together they can advance their cause.
The most obvious difference between Pastoralists and Aboriginal people is their respective forms of economic production. Whereas Pastoralists mainly use their lands for rearing livestock, Aboriginal people traditionally lived by hunting and gathering wild foods. In recent times in both cases, however, they have diversified their economic activities and taken up new opportunities. It is, for example , of particular interest to Pastoralists that Aboriginal people are becoming more involved in commercial livestock production.
The nature of land ownership in East Africa differs from that in Australia. In Tanzania for example, all land is owned by the state and ultimate authority over its dispensation is vested in the president. There is not freehold tenure and land can only be occupied by way of customary title or through leasehold tenure. Customary tenure is theoretically secure and heritable, but experience for many Pastoralists is otherwise.
Most of East Africa's most famous protected areas (i.e., Serengeti, Maasai Mara and Manyar national parks), have been excited from pastoral lands. To date the dispossessed Pastoralists have had to bear the costs of exclusion from land they regard as theirs, and enjoy little benefit from the management of these areas as tourist destinations.
In Australia, on the other hand, ownership of some national parks has been reaffirmed. Parts of some such as Ularu (Ayer's Rock) have been leased back to government for management. Others like Kakadu have some areas now recognised as Aboriginal land, although both parks are managed by a board with traditional owners in the majority.
The cultural and spiritual significance of land has been down played in relation to its economic value East Africa. On the other hand this dimension had been central to successful land claims in Australia.
Colonial Legacy
The approach to land by the same British colonial power varied on each continent. In east Africa attention was given to providing for respect of customary rights through colonial land ordinances. In Australia the doctrine of terra nullius extinguished customary rights to land. However, the effect was the same. In Australia colonists took what they wanted with the support of law, and although customary title was never formally extinguished in East Africa, it was more often then not simply ignored if it did not suit the purpose of providing land to settlers, or enabling the state to acquire land for commerce or conservation.
Australia Advances
Overturning terra nullius has completely transformed the context within which Aboriginal Australians are able to assert their customary claims to land. Following judgement in the Mabo case of 1992 in which the High Court decided that the High Court decided that Aboriginal peoples and Torres Strait Islanders owned all of Australia when English settlers first arrived about 200 years ago. In response to this decision the Australia government brought in the Native Title Act of 1993 that not only acknowledges Aboriginal customary rights to land, but also provided the means by which claims can be made. In a practical sense Pastoralists are where Australian Aboriginal people were before the Mabo judgement.
Aboriginal Australians were forced to challenge national laws because defendants could claim 'no case to answer'. Through selection of the Mabo test case they have been able to bring about reform in the law that serves the interests of all customary land claimants. This was later extended by the High Court in the Wik case of 1996 in which affirmation was given that customary and statutory rights could co-exist on pastoral leases. This has prompted a national debate about the extent of native title and its relationship to the nation's economy.
Recognition of customary rights has opened the door to new relationships between customary land holders and the state, and also between divergent and often competing land user groups. Australia's Native Title Act provides scope for negotiated settlement between these groups. It is also relevant where there is a mix or shared rights to land as found on the Cape York Peninsula in the state of Queensland. Aboriginal Australian of this area were able to negotiate with other interests (grazing, conservation) and agree on principles and a process to determine the extent and nature of land use by each party.
The Cape York Heads of Agreement of 1996 offers an example of how divergent interests can find a way to share lands for mutual benefit independent of government.
