Paving the Way – History and the struggle for Indigenous Land Rights

Recognising the Indigenous voice in history – Indigenous claims to land



Author: Elain Pelot-Syron


Throughout my schooling education, I was under the impression the Aboriginal land rights was an issue that had been solved through the Mabo case and the instigation of Native Title. Further research into the legal side of things highlighted to me the redundancy of Native Title and that in fact there was still more to be done. Sparking this interest led me delve into the ways that Australia’s history had in fact been a big hindrance into granting land rights. The 1967 referendum, a crucial point in Australia’s history had to my surprised not granted much, but instead awarded self-determination for Indigenous activists to spur ahead especially through protests for Land rights. The Gurindji walk off, Gove Land Rights case and the Aboriginal tent embassy began to embed these claims. Eventually the struggle for Native Title created an intersection between European and Aboriginal discourses of history. Upon reflection of the ‘Mabo moment,’ the use of history itself is integral in both helping and hindering the realization of Aboriginal land rights within our history.


Paving the way- Indigenous claims to restitution

The lack of political rights for the Indigenous meant that any form of advocacy was difficult. In 1966 the Gurindji walk off in the Northern Territory created a new awareness. Indigenous workers at the Wave Hill Cattle Station went on strike due to poor working conditions and pay, and following the strike attempted to claim back their land. The escalation of a strike to a land claim settlement became widely known and set a precedent for more land rights cases. The 1967 referendum followed and the issue of indigenous rights gained profile and more claims began to manifest.

The Gove Land Rights case was a watershed claim, with the Yolngu people living in Gove Peninsula attempting to claim back their land after a land destroying award of a 12 year mining lease to Nabalco. Australian law failed to recognize the spiritual connection of the Indigenous people to their land which hindered the ability of Indigenous people to gain proprietary rights. The Indigenous voice was not recognised in Australian culture and rather than changing old colonial laws, influence with politicians was needed to gain status[1].


The fear of the Truth – exposing the European historical discourse 

A challenge to Indigenous claims was breaking down the ideologies that had been set through European historical discourse. The narrative suggests the foundation of James Cook and the new British Settlement in 1788 was fair, peaceful and abided by international law. After the arrival of the First Fleet, Australia was declared to be Terra Nullius, meaning the land belonged to no one. Historical justification came from legal scholars such as John Locke, who commented on the ‘savage nature’ of the Indigenous people.[2], and lack of any recognizable proprietary rights or systems.[3] The declaration of Terra Nullius resulted in Australia being declared Crown Land, and the British people settled, displacing and destroying the livelihood of Aboriginal people.

The European narrative was an inhibitor to any claims to land rights for Indigenous people, stemming from the historic notion of a peaceful sense of national identity and a successful colonization.. Although both legally and morally the redundancy of Terra Nullius was necessary, questioning the European narrative meant questioning the legal system as a whole.

Although the recognition of Native Title in the Mabo case was a huge landmark for Aboriginal rights and reconciliation, it created another milestone by necessitating a change in the European discourse. History was also imperative to granting land rights by exposing the truth behind Terra Nullius. Historians such as Henry Reynolds who use history to ‘right old injustices,’[4] write history with a very pragmatic approach, one which ended up being crucial in the implementation of Native Title and Land rights. His book, The Law of the Land, was an integral part of the judgement text in the Mabo case when Native Title was first introduced.

Mabo’s fight for Native title did not come easily, it was a battle that lasted over 10 years, and from it we must ask the question, did it really bring that much benefit to Australian history? While the historic landmark of Mabo represents the struggles of the Indigenous, not all land rights problems have been solved. Even though within Mabo Native Title was granted to Eddie Mabo’s home land of the Murray Islands in the Torres Strait, the Crown still has the power to extinguish Native Title. In cases such as that of the Yorta Yorta people, it was held by Justice Olney that the “tide of history has undoubtedly washed away any traditional rights.” The European historical discourse still washes away claims to Native Title.

History has played an inextricable role in granting Aboriginal claims to land, through both creating a historical path and historical discourse. To truly realize Aboriginal claims to land we must amalgamate our past idea of a peaceful settlement and the doctrine of Terra Nullius with the reality that 1788 colonization was more likely a horrific time of war on the Australian frontier. As we reconcile these ideas of history, the Indigenous voice can become more apparent in our past.


Further Reading:

  • Attwood, Bain. In the Age of Mabo. Sydney: Allen & Unwin, 1996.
  • Attwood, Bain & Marcus Andrew (eds.) The Struggle for Aboriginal Rights, Sydney: Allen Unwin, 1999.
  • Loos, Noel & Mabo, Eddie Koki. Edward Koiki Mabo – His life and Struggle for Land Rights. St Lucia, University of Queensland Press, 1996.
  • Reynolds, Henry. The Law of the Land. Marybrough: Penguin Books, 1992.

[1] Heather Goodall, Invaision to Embassy (Sydney: Sydney University Press, 2008) 401.

[2] Bain Attwood, In the Age of Mabo, (Sydney: Allen & Unwin, 1996) viii-ix

[3] Henry Reynolds, The Law of the Land (Marybrough: Penguin Books, 1992) 12.

[4] Henry Reynolds, “Aboriginal-European contact history” Problems and issues, Journal of Australian Studies, 2:3 (1978) 52-64.

5 comments on “Paving the Way – History and the struggle for Indigenous Land Rights

  1. persephx says:

    Hi! I have to agree that all that school taught me was that everything was ‘fixed’ in the issue of Indigenous Land Rights after the Mabo case, so I found your piece really intriguing!

    What do you think needs to happen in order for the abandonment of the notion of ‘settlement’ that is perpetuated around 1788 to include the concept of ‘invasion’? As you say that it would ‘make the Indigenous voice more apparent in our past’, do you think the acknowledgement of invasion in our history would make the European discourse redundant? Does this then mean that the only possibility for the security of Native Title of Indigenous people would be if Australia became a republic and acknowledged the land rights of the Indigenous people?

    Just curious as to what you think! Thanks!

    • alexandra says:

      Hi! Glad you enjoyed my piece. I did struggle a lot with my personal beliefs when researching this topic. My first inclination is to say yes, I very much agreed with Attwood’s argument in that Native Title does make European historical discourse redundant – but I guess that is just history! Two versions or different perspectives aren’t necessarily wrong, they are just perspectives of history, and the one that we are taught is the one where colonization was very political. I guess there is no real borderline between the two, and I almost feel that is something people in themselves have to be able to make a judgement of. I do think better perspectives of history should be taught – but it is an odd thought. I remember in primary school learning about colonization, and couldn’t imagine at that age being taught about some of the horrors that occurred during ‘settlement.’ This is a question I have wondered about a lot but unfortunately have no real answers! When will we ever have an ultimate reality or truth. As for Native Title – there appear a plethora of issues, and once that I would love to learn more about to see what a more practical response is. It seems Native Title is embedded in our history as a solution to the ‘issue’ of Aboriginal Land Rights, but I definitely agree there is a lot more to be done. I feel the reality is Indigenous laws will never properly be embedded into a Western legal system. All quite a contentious issue as I discovered, and I do look forward to learning more about!

      • persephx says:

        Thanks so much for answering my questions!
        I guess it’s one of those issues that will always face marginalisation under a western government – which is extremely disconcerting!

  2. Christy Doran says:

    A very sound and thoughtful blog on an immensely important subject in Australian history. I like the link you’ve made between your own schooling experience and Indigenous history, because ultimately the vast majority of people do not go on to undertake further studies on Indigenous history or even modern history for that matter. I hope the general populous continues to hear more on this matter and we hear the voice of the Indigenous population shine through. Thanks for enlightening us on this subject matter.

  3. esilk90 says:

    As a History teacher I am sad to hear that your schooling experience taught you that Indigenous land rights were fixed after the Mabo case, if anything, it was just a bandaid solution on a myriad of problems. You have produced a great blog that has clearly been thoroughly researched. The Gurindji walk off played such a pivotal role in the land rights claims and still resonates in our ears today without many even knowing it through Paul Kelly’s song – From Little Things Big Things Grow.

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