Post Voice, we need to confront uncomfortable truths. Let’s start with Mabo

After spending a week a few years ago in a remote Indigenous community, I succumbed to a deep depression. From the frustrated young people lost in the yawning gulf between TikTok and an ancient culture, to the adults searching for meaning or solace, to the children removed from parents lost in addiction, the cycle of disadvantage has a careening inevitability. Disadvantage cartwheels destructively through these communities and down the generations.

Eddie Mabo alongside representatives of Aboriginal & Torres Strait Islanders at the Collingwood Town Hall. Credit: Staff

Many Australians who voted for the Indigenous Voice to parliament will be left confronting the same feeling of helplessness that led to my despair. The Voice was a life raft; now the question people are asking themselves is, what’s next?

The answer is neither simple nor modest. And it comes from a source many may struggle to listen to. Warren Mundine has worked for years to break down the barriers that exist to closing the gap. All the evidence shows that longer, healthier lives are a result of socio-economic wellbeing, so Mundine has focused on jobs and economic empowerment. In doing so, he’s contending with the Mabo High Court decision which, in some quarters, is regarded as an impediment to closing the gap.

In its ruling on the case brought by Eddie Mabo, the High Court applied an archaic mechanism of common law to recognise native title. Former Liberal senator Nick Minchin, who was deeply involved in the debates of the time, still shakes his head over the decision. “Common law title basically ended in England in the 1700s,” he says, “Real property rights have to be based on statute law. Under common law, Indigenous people now have a claim to land together, but individually there is no claim to use it. The individual can’t do anything on land owned communally.”

Macquarie University constitutional law academic Shireen Morris, who was involved in making the case in favour of the Voice to parliament, has also argued that Mabo “has come to limit Indigenous peoples’ future rights to their land under Australian law”.

The Mabo ruling “has come to limit Indigenous peoples’ future rights to their land under Australian law,” according to academic Dr Shireen Morris.Credit: Oscar Colman

“Far from inalienability being a protective restraint to ensure that Indigenous people retain their land in accordance with their laws and customs and do not lose it to market pressures,” she writes, “the notion of inalienability initially was a restraint on the natives’ power of choice and control of their land.”

Because of this communal ownership structure, any financial benefits that come from the use of this collectively owned land, such as mining royalties, are paid into the Aboriginal Benefits Account, managed by Aboriginal land councils. In theory, these bureaucracies are supposed to work under the instruction of Indigenous communities and in collaboration with other government bodies tasked with closing the gap to the benefit of Indigenous people. And yet, many who have tried to help Indigenous people in remote communities realise their aspirations will be aware, this communally held power does not translate into empowerment.

The community that I was involved with petitioned for 99-year leases, to allow the residents to own their own houses and cultivate their own businesses. It’s a lovely little community, but plagued by purposelessness; many of its young people go drinking in town out of boredom. It has a school with teachers who live in the community, but the kids don’t have much incentive to learn because there are no jobs. They want to change that. One group of women I spoke to hoped to plant native produce to sell to restaurants. But without a lease over their own land, the fruits of their hard work would have belonged to everyone in the community, making running a business essentially impossible.

Leading No campaigner Warren Mundine, pictured with Liberal senator Jacinta Nampijinpa Price, has a deep distrust of the agencies and institutions that are supposed to protect and support Indigenous Australians.Credit: Dan Peled

Despite the sunny rhetoric on the website of the National Indigenous Australians Agency, the simple request for leases proved futile.

Mundine has taken on Indigenous land councils in NSW. In 2004, a Sydney Morning Herald investigation found that the councils he was challenging were squandering money. In some instances, as the Independent Commission Against Corruption later concluded, the money was being corruptly siphoned off by controlling factions.

This left Mundine with a deep distrust of the agencies and institutions that are supposed to protect and support Indigenous Australians.

“If you were an X-filer and a bit paranoid about things, you’d say the system has been deliberately set up to keep us in poverty,” Mundine said at the time. “You are talking about millions of dollars for the most disadvantaged and alienated people in Australia. We can’t afford to lose a cent, let alone millions.”

Mundine tells me that this was behind his opposition to the Voice. Despite the ICAC findings, the problems of communal ownership controlled by land council fiefdoms have not been solved. Indigenous people are still not able to use their own land. Where money belonging to Indigenous people under the communal structure ends up, is opaque. The Voice, in his view, would have compounded the problem of power in the hands of a few without benefit to the many.

Mundine supports the audits being called for by fellow Indigenous No campaigners, Liberal senators Kerrynne Liddle and Jacinta Nampijinpa Price, as he believes they will reveal that funds are being misused and misdirected.

But ultimately, the effective concentration of control by a few must end. “The land needs to be divided up into freehold title,” he says.

The torment of Indigenous powerlessness is the torment of Indigenous propertylessness. The next step is to end this powerlessness and with it our national depression.

Parnell Palme McGuinness is managing director strategy and policy at campaigns firm Agenda C and a regular columnist. She has done work for the Liberal Party and the German Greens.

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