Customary land tenure, Native Title and Griffiths decision

There are many ways that people can hold land. You can own it, rent it, have an agreement with an owner that you can use it sometimes. The bank might own your land while you're physically on it. Around the world there are many traditional systems of land tenure that sit outside of a state legal system. These systems are known as customary systems of tenure. Indigenous Australians have tradition systems of land tenure - usually involving clans that move within contained territories. In other parts of the world, traditional tenure systems are centred on agriculture, so land is held and tranfered in specific plots. The land in dispute in Mabo was like that, I think.

Customary tenure will usually interact with state-run law in one way or another. In Australia, the customary system of tenure was finally recognised by the courts in the case of Mabo, and labelled Native Title. Native Title is significant because it gives legal standing to customary tenure in Australia, which is crucial when one is in the presence of competing interests. For customary tenure to survive in a world marked by colonisation and greed, it must be given legal recognision, so that it can stand up in the courts against other, more powerful players who want that land, dammit! In Australia, the Federal court will determine what kind of rights the indigenous group will have to the land - usually the group will be able to use it, but not own it (i.e. have registered title to it) or have exclusive possession. Thus, Native Title can sit alongside other, non-conflicting uses to the land e.g. pastoral leases.

Aboriginal people have fought tooth and nail to have their interests in land recognised by the colonial legal system. They finally got it the 1992 case of Mabo. It was confirmed later on in Wik. (Of course, there was a mega backlash by the newly elected Howard Government, which introduced a whole lot of legislation to water down the Native Title Act that Keating brought in to clarify native title.)

In the recent High Court decision of Griffiths v Minister for Lands, Planning and Environment, an indigenous group who had won their battle for Native Title got shafted first by the Northern Territory government, and then the High Court of Australia. The NT government decided to compulsularily acquire their land, and give it to a farmer. The High Court said that was ok.

How hard indigenous people have fought to get their interests in land recognised, and how quickly, in this case, were their rights stripped away. The majority judges did not consider the length of the road these people had taken to get to some sort of land justice, or the gruelling decades of the journey. They did not consider the implications for those who, as a result of the decision, lost their land and spiritual home. All they did was take a very literalist reading of the NT government legislation, which seemed to state that the acquisition could take place. The High Court does not believe in protecting fundamental rights, regardless of territory legislation.

The case has implications for us all. For those of us lucky enough to have an interest in land, the case paves the way for that land to be taken, for the benefit of another, private individual. So, your state government could introduce legislation that permits the taking of your house for the building of a shopping mall, and there is no High Court precident to say that this is not permitted. It is the poor and relatively powerless who are most vulnerable to such an event - the elderly lady who lives in a property in Fitroy, which a developer has an eye on; the family who lives on the edge of a rapidly expanding shopping centre and whose property is needed for a carpark. Properties have always been acquired for public uses e.g. roads, hospitals. But this decision opens up a whole new ball game - it is about the taking of private property for private use: for use by someone else who can put it to better economic value.

The Ngaliwurru and Nungali peoples in the Griffiths case are among the group most vulnerable to this decision. These people are traditionally disenfranchised and most likely to be dismissed as unimportant by governments. For most indigenous Australians, the colonial legal system equates to a trampling of Aboriginal land law. At the same time, every available tool that the colonial legal system offers must be utilised to protect indigneous land interests. The Griffiths decision signals a degrading of those tools - the only thing available that offers any protection to indigenous land tenure in Australia.

Good reasons to become a lesbian

Please excuse me - I'm going to have a rant that really should be relegated to my private journal, but I'm in the mood for publishing it on the net.

Men are just not interested in me! Ok - a few qualifications: 1) When I say 'men', what I really me is 'a significant majority of the men I know' (no need for grose generalisations); and 2) When I say 'not interested in me', I don't mean 'not interested in me as a means of fulfilling their needs and desires'. I mean, 'not interested in me as a person'.

I just had lunch with a friend. I won't mention his name, because this is the internet, after all, and I'm about to say some things about him that are less than complimentary. Most of the time, we talk about HIM. He's not the greatest conversationalist in the world, so I spend my time with him racking my brains for things about him that we can talk about. Cricket, tennis, his work, his family, rugby, football - most of these themes I'm not actually very interested in, but because he is somewhat passionate about them, I grit my teeth and ask him questions, and then attempt to engage with the subject matter of his answers. He asks about me, but only out of politeness, or out of a conviction that he really SHOULD ask, as part of the universal 'give and take' rule of which he is vaguely aware. I usually give him short, slightly vague answers that don't really reveal must information about me at all. It's not that I don't want him to know - it's that I know he's not interested and that by revealing anything real about myself, I have to deal with the blunt reality that he doesn't give a flying fuck.

So anyway, today I thought 'fuck it', and I told him a few little details about how I was REALLY going. I kept it positive - told him about answering the buzzer to people desperate for a meal or a clean syringe, and how I responded. I told him how I'd run into someone I knew at Fed Square, who was watching the cricket, and that he was really angry because no matter what he did or how hard he tried, he just couldn't find a place to live, and was forced to camp in the Carlton Gardens. I invited the guy over for dinner, and he helped me cook, and I learned about his story, and it was wonderful. So I told my friend all of this. He wasn't really watching me as I was talking, but I kept going anyway. Screw it, I thought, I was going to tell him how I was! I finally finished my long, excited monologue, and sat quiet, waiting for a response. Nothing. There was five minutes of sheer silence and finally my friend piked up. "So do you mean to say that you were actually at Fed Square watching the cricket?" I confirmed that no - I hadn't developed a sudden interest in cricket beyond painfully boring conversations with my friend - and we left it at that.

I ate my Greek salad and he munched on his Hawaiian pizza all in relative silence. I continued the conversation inside my head. See, you're never interested in me, I thought, glaring at the thread of cheese dangling from his lower lip. The one time I actually give you any real information about how I'm going, your only response is to bring it back into YOUR realm - like the most important part of the story, or the only bit you actually heard, concerned the cricket. Your snide remarks about how I'm a 'bleeding heart'; the way you talk about my passions as my 'little causes' - well, you are probably too self-absorbed to realise this, but the only reason I'm friends with you is because of my fucking 'bleeding heart'! I should tell you that. I really should. Oh but I can't. You would be destroyed by the truth. My bleeding heart prevents me from telling the truth. You still haven't noticed that I'm shitty. Well, I'm not going to tell you that I'm shitty if you haven't figured out on your own that I'm shitty. I'm just going to sit here in silence, shoveling my Greek salad, and glare at the growing pile of pineapple on your plate that you're picking off your pizza.

We finished lunch and I asked him which train station he had to go to. He looked slightly surprised (how thick is the guy!) - I told him I had some things to do. We said goodbye, and felt instantly terrible. I should have told him. The poor stupid guy - he doesn't know what he's done. Maybe he has a right to know that the reason he has no friends is because he's not interested in anyone except himself. I should call him. No, dammit - he should call me! But he probably just thinks I'm being a weird woman - she's probably got her period, he'll be thinking. He won't call, until the next time he gets lonely, and then he'll pretend nothing ever happened. Sigh.

And that's just one guy. It seems like it's all of them at the moment! I've been on a couple of dates lately, and each time I get to the end and think, 'This guy doesn't know the first thing about me!' Even in the awkward silences, they won't think to ask, 'So, you know that interesting tit-bit that you threw into the conversation before about something that you seemed passionate about and might shed light on the fullness of you as a person - please tell me more!' No - they will either tell me something else about themselves, or else wait for me to ask them another question about themselves. And I usually do, and I really shouldn't. Maybe I should just launch into something about me. But that feels too weird - I feel like I should be asked the question first. And sometimes even when I am asked a question, I feel like I can't answer it properly - I feel like I've been given this little window in which to talk, and I'd better hurry up and explain myself, because it will be closed in a second. Not exactly conducive to bearing one's soul to a potential partner.

But I have faith that they're not all like that. In fact I know that they're not all like that - I've met plenty who aren't. And so, I suppose, I will continue to live in hope. Or become a lesbian. Not such a bad idea, I've been thinking lately.

Mental health and human rights

Went to visit a friend in hospital today. Well, I suppose it's not technically a hospital - it's called 'extended care'. My friend is in the psych wing. She is researching human rights, because she says that her rights have been taken away from her. She has no choice but to take the medication that she is given, and no choice as to where she will stay. It's like being in prison. She says that she'd rather be in prison.

My friend wants to take the health professionals to court, arguing that her human rights have been breached. I didn't tell her that I'd studied law, and in any case, I really didn't know what cause of action you'd take the health authorities to court over. I thought about the Charter of Human Rights in Victoria - section 10(c) says that a person must not be "subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent."

I thought that individuals could use the Charter to take an authority to court. But I've just looked up the legislation, and it turns out that individuals can use the Charter to take statutory authories to court if those authorities have breached a human right. But it also looks like you need to have another action first - in other words, the breach of the Charter can only be an add-on to some other legal argument. So, for example, I guess you could sue an authority for negligence, and then also argue that the same action or ommission had breached a human right.

So, I'm not sure if this legislation will really help my friend, because I can't think of another legal cause of action on which you could base a claim. I assume the health authorities have statutory authority to force her to take her medication, and also statutory authority to admit her without her consent. Although I should really look into that.

I don't think this Victorian human rights legislation goes very far at all. It requires that all Bills introduced into Parliament include a statement of human rights compatibility, but the failure to do so doesn't make the Bill or subsequent Act invalid. If a Bill or Act does not comply with human rights, then Parliament can make an 'overriding statement' which says that the Act will be valid despite the fact that it doesn't conform. The Victorian Charter is nothing like the US Bill of Rights, which people can appeal to directly to stop individual breaches of rights.

There is debate about introducing an Australian Bill of Rights. If it's anything like the Victorian one, I guess you could say it's better than nothing, but it really does fall short of all that one expects when they think of a 'bill of rights'. I would be very surprised if Australia introduced a proper bill of rights. It would be a pretty radical move, because it would mean the introduction of a whole new area of law that nobody knows about. Making Parliament and statutory authorities abide by human rights would be a vast, unrestricted requirement - human rights tend to be broadly defined and I imagine that it would be very open to interpretation as to what authorities could or could not do.

But, I think it should be done! Exposing government authorities to a public that demands human rights will cause legislators and bureacrats to scrutinise every decision and action for compatibility. Common practices - like force-feeding drugs to psych patiends - would be reconsidered, and possibility publicly debated. I'd like to look into some other human rights legislation around the world - apparently we're the only Western democracy without it. What does the other legislation look like? How has it been used by the public? Has it been effective to defend human rights?

This thing is not a canvas!

This a poem I wrote about a few men in my life.

***

This thing is not a canvas!
It is soft and curved,
with spikes jutting out here,
and some uncomfortable potholes there.
It is smothered with slathers of paint,
all different colours.
Some of it is still wet -
careful now.
This thing is not a canvas!
and I am at a loss
as to how you mistook it as such.
I guess you see
what you want
to see.
But if you try to project yourself
onto this thing,
you will find
that it won't take your image
very well.
It won't reflect back
a picture
of you.
It can't.
It's already a thing -
coloured and textured,
ugly and beautiful,
all the dimensions present.
This thing is not a canvas!
If you want to look at yourself,
please don't look to me.
Go find yourself
a blank canvas,
devoid of bumps and freckles and laughlines.
Or even better,
Go find yourself a mirror.

Security

There is all this political talk about 'security' - national security; global security. In this context, the orthodox idea seems to be that 'security' is synonymous with 'military'. Security is achieved through military interventions and war.

What is security, really? On my definition, it is to feel safe; to feel free from harm...in a global context, to be without conflict. There is an idea called 'human security', which goes much further than the typical militarised version in explaining what security really is. On a 'human security' definition, we look at geopolitical, social, economic and environmental conditions that might endanger or negate the quality of human life. Immediately we see that for humans to be secure, we need to involve much more than the military. We need to fight poverty, injustice, discrimination, environmental degradation. We must stop conflict. But increased militarisation is not the way to do this.

Australia is involved in 'securing' places like Iraq and Afghanistan, but it doesn't seem like those places are very secure. In fact, the military intervention that defines security has resulted in a lot of civilian death, a lot of homelessness and a lot of poverty. Also a lot of environmental degradations - Iraq is really radioactive now, as a result of all the nuclear-powered artillery used there. Australian Defense Force public relations is quick to remind us about all the reconstruction work they conduct in Afghanistan. Yet after 7 years of Coalition forces in Afghanistan, the country remains in tatters. Average life expectancy is 44 years. Between 53% and 80% of Afghan people live below the poverty line. Adult literacy is 29%. The continued presence of war and violence is not helping things. The UN and Afghanistan Independent Human Rights Commission (AIHRC) has condemned indiscriminate killings by US-NATO forces of unarmed civilians, including wedding parties and many children. Military effort in Afghanistan, aimed at establishing a 'democratic' (or pro-US) government, is not making things very secure.

If US-NATO forces left Afghanistan, there would be no pro-US, puppet government. However, the region may actually be more secure. Some commentators suggest that the continued US presence actually revived and provoked the Taliban, by providing a clear opposition and fuel beyond their otherwise domestic concerns. A NATO withdrawal could facilitate a peace process. The solution lies in peaceful dialogue, not military violence.

The ridiculous, thoroughly ingrained paradox is that violence leads to peace. This is a myth. Violence never leads to peace. It might suppress conflict temporarily, but the conflict will rise again, like ants from a hole that has been sat on by something big. Certainly, violence does not contribute to security. Security is achieved when there is social, economic and environmental justice.

The 'violence to peace' myth permeates our society. It is seen as a legitimate form of conflict resolution - in the home, on the street, in the bars and clubs. Police shoot knife-wielding 15 year olds, rather than finding nonviolent alternatives. This is not security. This simply promotes more violence.

looking head on at that ugly thing

Just went and saw a documentary about the death penalty in Texas. I knew it would be full on, and I wasn't sure if I was completely up for it. It was about a Presbyterian minister who became the deathhouse chaplain. He witnessed 96 state murders - more than witnessed, actually, because he spent the entire day with the person who was going to die. I guess he was an active participant, although unique because he was on neither the side of the convict nor the side of the state...walking that fine line in between. I guess he role was to be a ray of God-light within the stark, grotesque, scene of murder.

I think I've repressed a lot of the trauma that went with doing the death penalty work in New Orleans. I think that it all got a bit lost within the excitement of being in a new place, and the feelings of loneliness, incompetence and rejection that I felt while being there. And then, after my 3 months were up, I shot off to Mexico and then returned to do other extremely intense work. But amid all that swirling sediment there was a rock that was the death penalty - something so ugly that I could never bear to look at. It is easy to avoid looking at it - to focus on the legal arguments, to get caught up in other work, to chat to the inmates on the phone or in person but never actually look the awful reality of state murder in its face and allow that feel of violent illness to wash over and do its work. Even as I write to Clifford, these few years on, I never really believe that he's going to die. He'll be ok. The lawyers will do a good job and get him off. Clifford is in his cell for 23 hours a day, but I want to believe that maybe it's not so bad. I guess my coping mechanism is to create a reality that's not nearly as bad as the truth.

Des and I had a good debrief afterwards, and I was thinking about how there's a part of us all that is attracted to the death penalty, and a part of us that is repulsed. The desire for revenge seems core to human nature, and exists buried within even the most articulate anti-death penalty campaigner. At the same time, the prison wardens throw up during executions - even the spirits of those most accustomed to the inhumane treatment of the state are sickened by this socially-acceptable kind of murder. I guess it's the light and dark in all of us.

I have a bit of money right now, and I've been wondering where to put it. I think I might donate some money to Reprieve. I don't think that I'll go back - it's really not what I'm gifted at. But maybe if I can donate some money, it will go a little way to preventing the state from killing someone else.

internet weather

Today I checked the weather outside by looking on the internet. What a bizzare world.