This week, Tasmanian Aboriginal Land Council chairman Michael Mansell met with Premier Peter Gutwein to discuss a treaty between the state government and the Aboriginal community.
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One of the elements Mr Mansell would like included in a treaty is land handbacks: Pieces of land owned by government, including national parks and reserves, given to the Aboriginal community to manage, and to operate cultural tourism enterprises.
The priority areas would be the Western Tasmania Aboriginal Cultural Landscape - a narrow strip along the West Coast containing significant Aboriginal artefacts, about 30 kilometres from Marrawah to Sandy Cape and about one kilometre inland - Mt William National Park and the Bay of Fires in the Far North-East, the South-West Wilderness Heritage Area, and the Tarkine rainforest.
One third of Australian land is legally owned by Aboriginal people in some form. The bulk is in desert regions of Western Australia, the Northern Territory, and South Australia.
In Tasmania, less than one per cent of land is owned by Aboriginal people.
Land owned by the Aboriginal people in Tasmania is:
- preminghana, 540 hectares on the Far North-West Coast at Mount Cameron West;
- Eight parcels of land in the Furneaux Islands including Cape Barren Island, 45,000 hectares, and Clarke Island, 10,000 hectares;
- A number of sites under 50 hectares: the former Aboriginal mission Wybalenna on Flinders Island; Oyster Cove, near Hobart, where Aboriginal people were settled in 1847 after the mission closed; Kutikina Cave, an artefacts site by the Franklin River; and Ballawinne and Margata Wina caves in the South-West, where ancient hand stencils were found;
- Risdon Cove, 109 hectares, a massacre site;
- larapuna, 10 hectares at the Bay of Fires, has been leased to the Aboriginal community until 2046.
Aboriginal people can gain ownership over land in Australia in two ways: through the courts or through parliaments.
The courts approach is done through Native Title. Native Title was the result of an Australian High Court decision in 1993 that provides a mechanism for Aboriginal people to gain legal ownership over Australian land. As the court system is independent of government, it does not require government consent for a claim to be successful.
However, a condition of a successful Native Title claim is that Aboriginal people must be able to prove continuing traditional law and customs existing on the piece of land since pre-colonisation.
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Since all Tasmanian Aboriginal people were induced to leave Tasmania for Flinders Island and the Furneaux Islands, it is unlikely they would be able to secure ownership through Native Title.
The other option is negotiating with government. In this case, government voluntarily hand over land to the Aboriginal community, via the land council. This is legally secured through legislation following a vote in parliament - in the case of a treaty, parliament would vote on all of the included measures including land handbacks.
Mr Mansell said he was "encouraged" by his meeting with Peter Gutwein, but formal treaty negotiations have not been entered.
Australia is the only Commonwealth country with no treaties with indigenous peoples, including New Zealand, Canada, and the United States.
Treaty processes are underway in Victoria and the Northern Territory.
Queensland has signalled interest but negotiations have not begun.
South Australia under former premier Jay Weatherill had begun a treaty process but this was stopped by the current government, and in NSW the idea of a treaty has also become a party politics issue.
Western Australia does not officially have a treaty with Aboriginal people, but the 2019 Noongar Settlement is effectively a treaty and has been called one by experts.