Storm over land rights
p. 34 · Read in the full issue
ELEVEN years ago when Eddie Mabo began an action in the Australian High Court seeking recognition of his land rights on Murray Island in the Torres Strait between Australia’s Cape York and Papua New Guinea. He could not have foreseen the storm his action was to create.
What is now known as the Mabo ruling has been hailed as the most significant decision ever by Australia’s top court. It’s led to a series of similar cases, including one claiming a third of the state of New South Wales, to frenzied media debate and to an emergency meeting of the Prime Minister and all state premiers, last month, which even though it was extended by a day, failed to reach any consensus on crucial issues.
At the same time Prime Minister Paul
Keating had made Aboriginal right a
personal priority telling Aborigines last
year. “This is a fundamental test of our social goals and national will our ability to say to ourselves and the world Australia
is a first rate social democracy, that we are what we should be truly the land of a fair go and the better chance.”
In acknowledging Eddie Mabo’s land rights the High Court overthrew the principal underpinning all land titles across Australia. 1 hat principle, known as Terra JVullius, was a patently ridiculous legal fiction which held that, at the time of the settlement, Australia was an empty land and therefore had no owners.
The High Court recognised an entirely new form of title to land native land but it also placed strict limits on the circumstances in which claims for native title could be made.
To claim, Aborigines have to have maintained their customs and to prove a close and ongoing association with the land, something which will be very difficult for those in many areas of New South Wales, Victoria and Tasmania who were
dispossessed early in Australia’s history.
Native title is also subject to state and federal legislation.
While claims for the return of land are only likely to be successful on vacant crown land, the land courts action has wider implications which affect the whole of Australia.
State and federal governments are now wrestling with questions such as should compensation be paid for the original dispossession and subsequent use of land? Should royalties be paid for minerals and do Aborigines have the right of veto over major mining projects. Should mining and pastoral leases on crown land revert to native title when the lease expires and what to do about leases taken out on crown land since 1975 which, because of the operation of the Race Discrimination Act, are subject to claims With an economy reliant on mining and primary produce, hundreds of millions of dollars worth of exports produced on those lands are potentially at risk as is future investment unless a mechanism for resolving claims and compensation issues can
be agreed on quickly.
Prime Minister Paul Keating had made it clear he wants Mabo to be a turning point the basis of a new relationship between indigenous and non-Aboriginal Australians which will go a long way towards redressing the dreadful disadvantage
Aborigines currently suffer.
As he said in a speech launching the International Year for Indigenous People, “By doing away with the bizarre conceit that this country had no owners prior to settlement of Europeans, Mabo establishes a fundamental truth and lays the basis for
justice. For that reason alone we should ignore the isolated outbreaks of hysteria and hostility.”
That statement was prophetic. In the run-up to last month’s failed talks with the states talks which had been intended to win national agreement for Keating’s package of Mabo reforms hysteria was the order of the day. The conservative Premier of Western Aus tralia, Richard Court, claimed his state would be “ungovernable” if Keating got his way and wanted the federal government to act to extinguish native title.
Mining interests, pastoralists chimed in, as did the media with the Is-your backyard-safe style of reporting. As a result of the fiasco th ~ee state premiers plan legislation to protect the existing land title.
Keating blamed the Victorian prem ier Jeff Kennett and Court for obstruct
ing a national solution, saying they had done a “deep disservice” to the states and the nation. The two conservative premiers, Keating said, were unable to get to the starting point of accepting native title existed.
The premiers’ rejection of Keating’s proposals came despite huge concessions from the Prime Minister. Keating offered to pay all compensation for native title overridden by the states between 1975 and June 30 this year. Another cost saving for the states was a proposal for federal tribunals to hear native title claims. In moves which will anger Aboriginal people Keating was also prepared to drop mention of a mining veto for Aborigines and a proposal for Aborigines to receive mining
royalties.
While the premiers could have been expected to put up enough fuss to extract concessions from Keating the outcome of the heads of government meeting has merely left chaos.
Aboriginal people, already concerned about what they saw as a betrayal by Paul Keating in May when the prime minister agreed to support legislation which secured the title of a giant mining project at McArthur River in the Northern Territory, are going to be justifiably cynical about what politicians will be able to deliver and will continue with a raft of Mabo style claims many of which are likely to fail, creating more bitterness.
Ironically the states plan for legislation to validate titles may only cause the very sort of uncertainty they are hoping to forestall. The problem, for the states, is that any legislation they pass is subject to federal laws. With the constitution forbidding the acquisition of property on unjust terms and the Racial Discrimination Act forbidding actions which discriminate against persons on the basis of race thereby preventing them from enjoying their human rights (including their right to property), it is almost certain state legislation will end up being challenged in the High Court.
Perhaps the only thing now working in the favour of genuine reconciliation with the Aborigines is time.
Once the chaos unleashed by some conservative premiers’ intransigence starts to take its toll, federal intervention will look much more attractive. Even then the reconciliation will only be successful if Keating sticks to his guns on crucial issues such as compensation and the genuine recognition of Aboriginal culture and history, with all the legally enforceable rights that would entail.