A gift from down under: What the recent Academy Awards gift bag controversy tells us about Indigenous land rights and native title in AustraliA

ByAsirahAbdulKadir

This year’s Academy Awards was full of historic wins and long-anticipated representations in media, but in true Hollywood fashion, questionable affairs have taken the spotlight. After all, what is Hollywood without a little bit of controversy?

No, I’m not talking about the infamous Slapgate nor the Moonlight/La La Land debacle. This year’s Academy Awards controversy hits close to home; pieces of land in outback Queensland were passed out in the goodie bags like packets of Wizz Fizz. Following the ceremony, The Guardian Australia reported that a company called Pieces of Australia paid upwards of $4,000 for a spot in the coveted Oscars hamper, distributed by Distinctive Assets (unaffiliated with The Academy).

Hollywood celebrities were each gifted 1 square metre of Pieces of Australia’s privately-owned land on Baruŋgam Country, a symbolic certificate of land licence, and two trees planted in their honour. The company claims that the Conservation Packs featuring these items aim to preserve and protect Australian land from exploitation, whilst also recovering First Nations peoples’ connections with the land.

These glittering promises are all well and good, but we hit a pointy iceberg when it was reported that the property is situated in the heart of a coal seam gas field that’s currently being exploited. What’s more, the company has been accused of using the name and images of an Indigenous organisation in Pieces of Australia marketing without their consent.

A lot could be said about the irony of this situation, and indeed, many have made their thoughts known. What intrigues me more are the signals it seems to send about the limitations of Australia’s native title laws.

Before we dive into that discussion, it’s important to understand the history of native title. One of the many reasons why colonisation was successful in Australia was because of the Latin word, terra nullius. The colonisers did not consider the Indigenous inhabitants as humans, and used that to justify taking their land. Two centuries and a historic High Court decision later, the archaic suggestion that this country belonged to nobody was eradicated. Finally, the pre-existing rights of First Nations Australians to their land were legally recognised!

Legislations codifying these rights followed soon after, yet like many other policies and systems, these were not without flaws.

A common misunderstanding is that with native title comes ownership. However, according to the Native Title Act 1993, native title is limited to the recognition of rights and interests of First Nations peoples in relation to land and waters. This includes the rights to fish, to hunt, or to hold ceremonies on Country. As a result of this, native title holders can’t dictate what can or cannot be

Note also that these rights do not encompass the rights to use land or water for commercial purposes. This means Pieces of Australia may profit off the land, but the same can’t be said for First Nations communities. This becomes problematic as we evolve into a society dependent on trade. ‘In Canada and the US, Indigenous communities that hold native title or its equivalent can make use of that land for commercial purposes, just as any other owner might do,’ explains Professor Paul Babie from The University of Adelaide Law School. So why haven't our laws and policies picked up on this? The Australian Law Reform Commission has called for the inclusion of commercial rights in native title to keep up with the status quo.

Proving one’s entitlement to land rights carries its own set of issues. To claim native title, the claimant must prove that an unbreakable connection with the land or water is still in existence and that they have continuously exercised their customs and practices in relation to the location since settlement. Alarm bells go off as we reflect on Australia’s dark and bloody history with its First Nations peoples. How can Indigenous communities successfully prove an unbreakable connection with the land when colonists actively tried to eradicate said connection and customs?

While it is important, native title is still a weak form of proprietorship. First Nations peoples don’t have actual ownership of the land or water, so the extinguishment of native title is easy. And once it’s gone, it’s gone; affected Indigenous communities are barred from ever applying for native title of the land again. The process of instituting a native title claim has also been reported to be long, strenuous and resource intensive, with applications taking anywhere between 6.5 to 18 years before a decision is made.

It’s quite unsettling to learn how easy it was for Hollywood stars to own a piece of Australia, when many of the country’s traditional owners and custodians won’t live to see the day they get to call Australia their own again.