Is Crown Land Indigenous Land?

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In the aftermath of floods, fires, earthquakes and cyclones, Australians and New Zealanders have responded positively to Prince William taking time from his prenuptial arrangements to visit us. The "handsome" Prince was a welcome distraction for those living the disaster stricken regions. In contrast, it is doubtful that Prince Charles would have left many "schoolgirls’ hearts … pounding", as Prince William reportedly did. In fact, the Prince has the ability to leave even the most seasoned political veterans gasping for air. As former federal MP Ross Cameron reminded us early last year, the Prince has "princely magnetism". 

A royal visit provides one of those rare moments when the connection between Australia and the Crown comes to the attention of the wider public. We happily enjoy a public holiday but it is events like a royal visit or the upcoming wedding of Prince William and Kate Middleton that give us pause for thought about the potential future King of England and the Commonwealth.

Twelve years after the referendum that reaffirmed Australian support for a constitutional monarchy, the question of a republic might have fallen off the reform agenda — but it has not disappeared from the national psyche. With hindsight, it is easy to see that the way the question was framed led to the decision to maintain the status quo. The proposal was defeated because it consisted of a complex combination of electioneering and political appointment that confused voters and took the focus away from the deeper issues. While some pro-monarchist commentators, such as Cameron, claimed that the result was a popular confirmation of a limited monarchy, pre-polling made it clear that a republic was desired, but that the model offered was not the answer Australians were looking for.

As former PM John Howard argued, the constitutional monarchy will endure during the lifetime of Queen Elizabeth II. It is over two centuries since the fiction of terra nullius was used to legitimise the British invasion, and vest what we have come to know as Australia under the British Crown. While other colonies have strived for their independence, despite the hugely important Wik and Mabo decisions of the 1990s Australia remains tied to a monarchy that colonised and wrestled this land from its original Indigenous inhabitants.

So what role does the Queen play in the life of Australians? Let’s review: Constitutionally, the Queen (or her appointed representative the Governor General) has a number of important powers that can usurp the elected government. This is something that the Australians for Constitutional Monarchy celebrate for they argue it ensures that "ambitious, self-seeking individuals" cannot gain power.  Allegiance to the Queen of Australia is the fundamental criterion of membership of the Australian body politic.

The sovereign is regarded as the legal personality of the Australian state; so all state lands are called Crown Land. Such land includes land that is "reserved, owned for public purposes, or vacant" and includes reserves for "nature conservation, forestry, marine conservation, water conservation, mining and defence as well as vacant and other Crown land".  In fact, GeoScience Australia estimates that 23 per cent of Australia — or approximately 1.76 million square kilometres — is classed as Crown Land under this definition. Crown land endures, even after the Mabo judgment in 1992 in which the Court found that a native title to land existed in 1788 and may continue to do so provided it has not been extinguished by subsequent acts of government.

The Australian property rights regime is made up of a complex series of tenures that include, Crown, freehold and leasehold land. Freehold interest (which applies in all Australian States and the Northern Territory, but not in the Australian Capital Territory) is actually a fee simple absolute in possession, created by grace of the Crown, and guaranteed by the State or Territory on behalf of the Crown. Such subsidiary interests as freehold and leasehold, which allow for the productive use of land, do not diminish the overarching and superior interest of the Crown.

As a settler community, Australians are often very protective about their notion of ownership. When the Single Noongar Application was decided in 2006, for example, the media unrealistically fuelled concerns that people’s backyards would be taken from them.

The question that we must consider is how to reconcile the concept of Crown Land with the Aboriginal and Torres Strait Islander community now that terra nullius has been overturned? It is this challenge that the magnetic Prince William will inherit when he becomes King William.

This brings us to the nexus of two fundamental challenges: the republic and reconciliation. Any discussion about an Australian republic should not be about a change of head of state or a new flag. Rather, the real debate must focus on true reconciliation with Aboriginal peoples and Torres Strait Islanders — and on recognition of their enduring guardianship of the land.

To achieve this, we must consider how property rights might be reframed in the absence of the Crown as the holder of the superior interest over land and we must reflect on the role that the first Australians should play under such a scenario. In any move from a constitutional monarchy to a republic, the new constitution would have to be drafted to articulate the values of the nation. Our hope is that such a constitution, in stark contrast to the current one, would both fully acknowledge and reflect the authority of the first Australians.

Such an approach opens the door for broader discussion on contemporary property rights in republican Australia. What, then, should an Australian Republic look like? To answer this, we need to look beyond the figurehead and inquire into the very foundations on which we have built this country. Who are the custodians of the land? Who has superior ownership of the land?

The former Chairperson of ATSIC, Gatjil Djerrkura, articulated such a perspective. He captured the sentiments of many Australians — both Indigenous and non-Indigenous — when he questioned the propriety of a minimalist Republican campaign that all but ignored Indigenous claims:

"A narrow debate over whether we should have an Australian or British head of state will not satisfy our expectations for change … For my people there is a far more important question than asking: Do we want a Queen or a President as our head of state? Instead, we ask ‘Are our rights as the continuing custodians of this land being recognised?’"

There are many models that we could draw on, including leasehold or land tax solutions. Such revolutionary approaches would not divide the community as we are warned by the Australian Monarchist League chairman Philip Benwell. Rather, as we farewell Prince William from our shores and observe the Royal Wedding from afar, we should make time to consider the place of the Monarchy in contemporary Australia, and question the notion of Crown Land in a country that claims to fully recognise Native Title.

 

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