03/06/2012 - Exactly 20 years ago today, the High Court of Australia extinguished the legal lie of terra nullius, by which theory the customary land title of the Australian aboriginal nations had been denied for two centuries of dispossession and genocide, and confirmed the juridical status of native customary land title.
To quote from the Court's judgement:
"In the result, six members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland"
The long battle between the State and the holders of customary land title in Australia had finally been won. And it had been a long, costly and bloody battle. As Justice Brennan wrote in his now famous judgement describing the land wars in Australia:
"As time passed, the connection between different tribes or groups and particular areas of land began to emerge. The Europeans took possession of more and more of the lands in the areas nearest to Sydney Cove. Inevitably, the Aborigines resented being dispossessed. Increasingly there was violence as they sought to retain, or continue to use, their traditional lands.
An early flash point with one clan of Aborigines illustrates the first stages of the conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame."
Customary lands and the communities who have owned them since time immemorial in East Timor have, during the European and the Indonesian hegemonies, and through to the present period of national independence, also been confronted by the assertion of State authority over those lands. And recent attempts to regulate land ownership in East Timor have failed to adequately address the problem of customary lands.
(to be continued)