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Wednesday, 11 March 1998
Page: 962


Mr LEE (12:43 PM) —You might be surprised to learn, Mr Deputy Speaker, that I was disappointed in the speech which the honourable member for Kingston (Ms Jeanes) has just finished delivering on the Native Title Amendment Bill 1997 [No. 2] . Perhaps I could begin by challenging one of the crucial centrepieces of her speech, and that is her claim that we in the Labor Party have this attitude—this was the label the honourable member stuck on us—`The nation either accepts the Labor Party position or we go to war on race.'


Ms Jeanes —That's right.


Mrs Gallus —That's it.


Mr LEE —Mr Deputy Speaker, you would have heard the honourable members interject and say, `That's it.' The point I would like to make quite clearly is that the bill that came to a final vote on the third reading in the Senate was not what the Labor Party wanted. There were 300 or more amendments to the original bill introduced to the Senate, the bill that had passed the House of Representatives. By the time Senator Harradine, the Greens and the Democrats had worked out which clauses they thought should be passed, altered and amended, the bill was very different from that which we would have wanted and also very different, I am sure, from that which the government wanted. But we in the Labor Party believe that the Harradine compromise, which gave 90 per cent of what the government asked for, was better than nothing. We were prepared to vote—and actually did vote—with the government on the third reading to pass that bill. So I think that is pretty fair evidence of the lengths the Labor Party has been prepared to go to to seek to have these problems addressed.

The test of good faith for the government came a couple of days ago when the Attorney-General (Mr Williams) stood up in this House and introduced the government's Native Title Amendment Bill—not as amended, not the Harradine compromise which gave the government 90 per cent of what it asked for, but this government's original Native Title Amendment Bill. You have to ask yourself why the government has rejected a large number of amendments that it accepted in the Senate when the legislation was before the Senate last year. The only conclusion you can reach is that the government is determined to trigger an election based on the Wik legislation. It is clear from that as to which party wants to go to war on race. I sincerely hope that the government fails in its attempt to try to use this legislation to divide the nation.

Before I return to a few comments about the current legislation, it is important to review how we have got to this point. When you go back to the original Mabo decision in 1992, in some ways it was not all that surprising that the High Court made a ruling that, under Australian common law, native title existed on Murray Island. The reason I say that that was not that surprising in hindsight is that, in some ways, the Australian High Court was coming into line with decisions of the Canadian and the United States supreme courts. For many years those courts have been handing down decisions that recognise their indigenous citizens' right to traditional uses of land.

Murray Island—or Mer Island, whichever name we use for Murray Island—had some land practices that most of us would have believed gave people certain entitlements to land. Land was handed down from generation to generation. There were recognised boundaries on parts of the island. I think most Australians would have thought that it would be an outrage if those islanders' rights to ownership and having some say over their land was overturned because of some piece of paper signed in Britain in colonial days or some piece of paper signed in Brisbane. But, nevertheless, when that Mabo decision was handed down, it forced the nation to address what should be the rights to land of indigenous Australians.

In a year of discussion and negotiation, the Keating government sat down with representatives of indigenous Australians, with representatives of the miners, the pastoralists and the churches. The 1993 bill was not perfect, but it was a bill that sought to strike a compromise. It agreed to validate all of the interests in land that were placed at risk by the High Court decision. In return, indigenous Australians obtained a right to negotiate where they were able to lodge legitimate claims for native title or have native title accepted.

We were very keen to set up tribunal and court processes that would try to ensure that these cases did not have to be dealt with under Australian common law. We saw the Mabo case itself take more than 10 years. The compromise that the Labor government introduced certainly did not provide Aboriginal Australians with a veto over land on which native title was accepted. It gave those indigenous Australians certain rights: a right to negotiate for six months and if, after that period of six months, no agreement could be reached a second period of six months was put aside for the Native Title Tribunal or an equivalent state body to arbitrate over what would be a fair deal between a miner or a pastoralist and the native title holders.

In addition to that, there was a further protection to ensure that the interests of the country were looked after, to ensure that the national interests were looked after. After the six-month period of negotiation and the six months for arbitration, even if the decision went in favour of the native title interests, we allowed ministers of the Crown, federal or state, to be able to overrule the decision if it was in the national or the state interest. That was certainly not the veto that indigenous Australians were given by the Fraser government in 1976 under the Northern Territory land rights legislation. It was certainly a compromise that gave the pastoralists, the miners and those with interests in the land the validation they needed for greater certainty, but there was also a concession on the part of the indigenous Australians that their rights would be prescribed in the manner I have outlined.

That legislation was passed by this parliament despite the active and determined opposition of the coalition parties. We had to strike all sorts of compromises on amendments with the Democrats and the Greens in those days to ensure that that 1993 compromised bill was passed. We have never claimed that that bill was perfect. My colleague the member for Banks (Mr Melham) and the Leader of the Opposition (Mr Beazley) have made it clear on many occasions in the last two years that we are and have been prepared to sit down with Justice French from the Native Title Tribunal and with members of the government to look at ways that we can make the system work better than it has in the past. But, at the end of the day, there has to be that compromise—validation in return for the right to negotiate followed by right to arbitration followed by the right of a minister to overrule. That is the compromise that is the very basis of the native title legislation.


Mr Melham —And that it is constitutional.


Mr LEE —As my colleague interjects, it is also essential that that compromise be there to ensure that the bill can withstand constitutional challenges. There is no point in the government claiming that what they want to do to provide certainty is wipe out the interests of indigenous Australians if, at the end of the day, that delivers the government with a bill that will be struck down by the High Court because it is unconstitutional.

The government claims it is trying to deliver certainty, but the very mechanism it is using is going to increase the level of uncertainty in the community. It is going to mean that various acts that could have been validated by the government last year, if it had accepted the Harradine compromise, are still at risk today, because this government, rather than trying to prepare the way for a compromise, has been determined on preparing the way for a double dissolution election.

That position has not been helped by the activities of the National Farmers Federation with the support of coalition members who have run around saying that the backyards of ordinary Australians will be lost to indigenous claimants or claims that freehold titles are at risk or even the attempt by the Prime Minister (Mr Howard) to use his infamous map of Australia on television to try to inflame the debate. That is certainly not the action of a Prime Minister determined to try to address the problem and to find a compromise that all of us can live with.

Mabo came down in 1992, and a number of people have made false claims about what the former government's view was on pastoral leases. One excerpt from the Commonwealth Law Report on that Mabo case describes very succinctly what the position was on the island of Mer. It makes the point:

In 1882 the Islands were apparently reserved by proclamation for the native inhabitants of the Colony and part of Mer was leased by the Crown to the London Missionary Society and subsequently was transferred to the Australian Board of Missions, to trustees of the Board and thence to a church body. In 1912 the Governor in Council ordered that the Islands (with the exception of the leased area of Mer) be permanently reserved and set apart for the use of the aboriginal inhabitants of the State. In 1931 the Crown granted a twenty-year lease of the whole of Dauar and Waier for the purpose of establishing a sardine factory. The lease was subsequently forfeited.

The crucial thing about that excerpt is that that provision for a fishing lease was mentioned by Justice Brennan in his decision. He made the point that, while native title was found to exist on Murray Island, it was so fragile that a forfeited fishing lease could extinguish native title. All of the legal advice which came to the government of that time—perhaps even from some people who are in the officials gallery today—and certainly all of the official legal advice that came from people of very high stature in various government departments of the day, was that it was extremely unlikely that pastoral leases would fail to extinguish native title—in part, because many of the experts had read the judgments that were handed down by the various High Court judges.

I acknowledge that there were others who argued that coexistence was a central feature of this whole debate. Therefore, I think it was quite proper for the government to act to ensure that any interests in land that were struck down by the first Mabo decision had to be validated. That is what we did. Any pastoral leases which were placed in jeopardy by the Mabo decision were fixed up by our 1993 legislation.

The problem came when the Wik test case came before the government. Naturally, it was indigenous Australians keen to ensure that they had the best chance of success on this legal point who took a case before the government that involved a piece of land in Queensland. That particular piece of land was included in a pastoral lease earlier this century, but there was very little, if any, activity actually carried out on the land in northern Queensland. So that was the ultimate test case of whether or not pastoral leases extinguished native title. If no activity actually took place on the land, could native title be extinguished by simply drawing a line on a map in Brisbane?

That is why the Wik case was so important, and it found that, where pastoral activity and native title conflicted, the pastoral interest would override. It provided for the coexistence that the member for Banks was referring to. There was no way in the world that people could claim that farmers lost the right because of the Wik decision to build dams, to fence their property or to repair fences on their property. That was the sort of inflammatory language that we had from the National Farmers Federation and members of the coalition, simply because of that decision handed down by the High Court.

When this legislation went before the Senate last year, Senator Harradine went through and basically gave the government 90 per cent of what it was after. The Harradine compromise provided us with at least a starting point for resolving this issue. The Labor Party would have preferred the government to have actually accepted it as the resolution of the issue. If we had had a different Prime Minister, if the member for Bennelong—the Prime Minister—had been prepared to step back and look at it objectively, if the Prime Minister had accepted the amendments that were put through the Senate last year or if the Prime Minister had accepted the Harradine compromise, what would have happened? The validations would have gone through.

All the people who have interests in land—the thousands of Australians and the thousands of companies that are affected by interests in land that have been granted in recent days by state governments—know that their interests in land are at risk because this government and the member for Bennelong, the Prime Minister, have refused to allow the Harradine compromise to be accepted and, therefore, have refused to allow those clauses that enact the validation to stand. That is the first point.

If ever a government were trying to argue that we needed greater certainty, surely they would be not only seeking to ensure that the validation was passed as soon as possible but also keen on making sure that their bill would withstand challenges in the High Court. That is the point that we believe has been addressed in the Harradine compromise. We think the Harradine compromise does seek to ensure that the bill can withstand constitutional challenges.

At the end of the day, we believe that we have tried to address this in a manner that addresses all the concerns of all the stakeholders involved in this. We have sat down with the farmers, the miners and the indigenous Australians. We have tried, where possible, to acknowledge that the previous Native Title Act was imperfect. We have been prepared to sit down with people like Justice French and others to work out ways to make it work more efficiently. We believe that this is not legislation which is about some form of guilt. Guilt is not a very productive feeling in my opinion, but we need to acknowledge the mistakes that have occurred in the past, and it is crucial that we do not make the problems worse by precipitate actions—certainly precipitate actions by this government—to seek to obtain a double dissolution election on this issue of race.

At the end of the day, all Australians have a shared future. We are the only nation that occupies an entire continent. Indigenous Australians and non-indigenous Australians do have that shared future. If we are to ensure that the mining, tourism and pastoral industries continue to grow, if we are to get the development that will fund the future improvements in health, education and other community services, we have to make sure that we have a native title bill that will not be struck down by the High Court, that will not be tied up in challenges in various courts of the land for another decade. That is why this government should be seeking to get that compromise that delivers the certainty that it claims it is after.