Land 'backbone' of Aborigines

Australian rock art in the Kimberley - dated at 28,000 years old - is considerably older than previously thought.

Arguably the most important issue for Australia's indigenous population is the issue of ownership of the lands they have occupied for more than 60,000 years.

In purely economic terms, owning this land would provide much needed resources to tackle the problems that plague indigenous communities, including an average life expectancy 10 years less than their non-indigenous counterparts, a far greater child mortality rate and an unemployment rate three times that of their fellow Australians.

Land is of critical importance to the social and cultural identity of indigenous people. Galarrwuy Yunupingu eloquently describes the relationship indigenous Australians have with their land.

"The land is my backbone. I only stand straight, happy, proud and not ashamed about my colour because I still have land.

"I think of land as the history of my nation. It tells us how we came into being and what system we must live ... my land is my foundation. Without land I am nothing."

The expropriation of indigenous territories was a combination of economic and political pressures, frequently justified by the different cultural and social views of land held by the native inhabitants and the colonisers.

Whereas for indigenous Australians, land served as the source of social, spiritual and legal arrangements founded on the attendant duties of reciprocity and custodianship, the British-derived concept of the new arrivals was intrinsically bound up with the legal notion of private possession. Given the dominance of non-indigenous people, their concept of land became law, creating a legal reality that continues to work greatly to the detriment of the indigenous inhabitants.

The landmark 1992 Mabo land case recognised native title and the right of indigenous Australians to their traditional lands. For this recognition to apply, however, indigenous Australians had to prove an ongoing and uninterrupted association with the land and demonstrate that no "explicit act of the government, federal or state" had extinguished their right of native title.

Land rights claims could be rejected if the judge decided indigenous people had "lost" their connection with the land as a result of ceasing to acknowledge local laws and customs.

Furthermore, the principle of extinguishment in Mabo limits or qualifies the extent to which native title might be legally recognised. If the British Crown had undertaken any act wholly or partially inconsistent with native title, the right of indigenous people to their land was effectively removed.

In 1998, the claim of the Yorta Yorta people to lands they had continuously occupied since Captain Cook's arrival was rejected. According to Judge Olney of the Federal Court, the "tide of history had washed away any real acknowledgement by the Yorta Yorta of their traditional laws and customs".

In 2002, the High Court upheld this judgment. This ruling had a seriously chilling effect on native title aspirations.

In effect, the indigenous community faces a double colonisation and dispossession. Firstly, their lands were unjustly seized - now, to retrieve some of these lands, they must return to the courts of the civilisation that dispossessed them in the first place.

Instead, what is required is a genuine acknowledgement by the non-indigenous population of the wrongs that were visited upon the indigenous community, accompanied by a genuine desire to undertake substantive economic, political and social measures to redress the inequalities that ensued as a result.

Through the restoration of their lands, indigenous Australia would be able to devise their own independent economic and political strategies. Failure to adopt this approach risks resulting in the end of history for one of the world's oldest living cultures.

Justin Frewen is a Wanganui-based United Nations consultant, who has served the UN on humanitarian missions for almost 20 years