Welcome to Country: have we worn out our welcome?
23 August 2022
Now that the Labor-Green alliance has formed a government, Prime Minister Albanese has informed us a referendum is needed to amend the Australian Constitution to provide a ‘voice’ to Indigenous Australians in Parliament. This Voice is appointed, not voted, therefore bypassing the democratic process upon which the entire Australian Constitution is premised.
Prior to such a referendum, serious and open discussions should take place in order to flush out the true motives behind such a radical amendment.
Recently, at a conference in the Convention Centre at Darling Harbour in Sydney, there was a Welcome to Country where the speaker added a few things which seemed to have morphed the once friendly greeting into something a little less benign. He explained that the Indigenous people were not only the custodians of the land but the owners of the land.
At the end of the ‘Welcome’, the speaker griped he now had to pay a guy named Wilson to remove his car from his own land.
What the speaker was alluding to was Native Title Rights to Land and the popular Wilson parking service.
Native Title became a significant factor in Australia in 1992 when the High Court, in the famed Mabo case, determined Australia was not ‘terra nullius’ when colonised by the British, thus giving validity to Native Title.
The court also said, ‘Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy Native Title, Native Title is extinguished to the extent of the inconsistency. Thus, Native Title has been extinguished by grants of freehold or of leases…’
The High Court therefore made it abundantly clear in Mabo that whilst Native Title is a genuine phenomenon in Australia it does not override freehold title. This was done to protect home ownership by Australian citizens.
Owning one’s home was, and still is, the Australian dream. The concept of preserving freehold land as well as Native Title rights must be maintained.
So, what was the speaker getting at when he referred to having some ownership over the Wilson car park?
There have been several Native Title rights cases decided by the High Court since Mabo.
The legal principles derived from those decisions make it harder for Native Title to be extinguished than it was in the early years post-Mabo. There now must be clear evidence of intention to extinguish Native Title. The threshold required to be reached in court to extinguish Native Title is therefore much higher.
Darling Harbour is owned by Place Management NSW which gains authority from the Place Management NSW Act 1998. The Harbourside Car Park is managed by Wilson Parking on behalf of Place Management NSW. Nowhere in the Place Management NSW Act 1998 is there any clear intention to extinguish Native Title.
Since 2015 and after the decision of the High Court in Queensland v. Congoo, the Court considers there is now a presumption against extinguishment. The NSW government in the Place Management NSW Act 1998 have not expressly made their intention to extinguish Native Title clear. The speaker from the conference may have had a point.
The problem can easily be solved by the NSW government amending the Place Management NSW Act 1998 to add a paragraph intending to extinguish Native Title. This, however, is not likely to happen as the government would need to amend every piece of legislation of a similar nature to ensure the extinguishing of Native Title on a large-scale basis and they would not have the courage to do so.
By ignoring this issue each state government might be putting off a potentially serious problem.
Native Title has increased from 0 per cent of the Australian land mass since 1992 to 49 per cent of the Australian land mass in 2022, and that number will likely rise.
It is impossible to drive through any city in Australia without seeing a sign saying ‘Welcome to Cammeraygal Country’ or some other Aboriginal tribal name with the word ‘Country’ juxtaposed to it.
This is all accepted as part of the process of reconciliation.
That is all good. Where is the end to the process of reconciliation, or is it the gift that keeps on giving?
If there is to be a debate about a Voice in Parliament, and this is to assist in accelerating the process of reconciliation then one of the issues of the debate should be what is Australia to look like after we have all reconciled?
What do the pro-Voice advocates say the Native Title proportion of Australia should be?
Should freehold title remain elevated above Native Title as decided in Mabo 2 and the Native Title Act, or should that also change? And if the answer to that is ‘yes’ then what should it be changed to?
When the dream of every Australian to own their own home hangs on the thread of a judge’s utterance in 1992 or the convoluted sections of the Native Title Act 1993, how can the Prime Minister be so cavalier in the way he is dealing with the Voice to Parliament issue?
Prime Minister Albanese said it is a question of ‘manners’. The Greens, the extreme left media, and left-wing academia are using words like ‘invasion’ and ‘colonisation’ of the land.
Mr Albanese is the Prime Minister for all Australians. True leadership identifies who you are leading, and he is leading all Australians.
All Australians should be given as much information about this proposed Constitutional amendment as possible with a thorough debate and all sides given the right to be heard.
That is the only way the amendment can be understood. Remember the famous words of Paul Keating a former Labor Prime Minister, ‘Don’t vote for it if you don’t understand it. Because if you do understand it, you will never vote for it.’
Why do non-Indigenous Australians need to be welcomed to their own country? And have they have worn out their welcome?