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Transcript of interview with John Laws: Radio 2UE, Sydney: 17 June 1993



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164

PRIME MINISTER

TRANSCRIPT OF THE PRIME MINISTER, THE HON P.J. KEATING, MP INTERVIEW WITH JOHN LAWS, RADIO 2UE, SYDNEY, 17 JUNE 1993

E&OE PROOF COPY

JL: With me in the studio the Prime Minister of Australia. Good morning and welcome.

PM: Good morning John.

JL: There was fog in Canberra was there?

PM: Yes, we da rted through it.

JL: So long as it was safe.

PM: Yes, it is easier to get off the ground than get back down.

JL: That's right, winte ry mornings ar e not much fun in Canberra. A wintery morning right around Australia and a lot of people feeling a li ttle chilled by the Mabo decision and I think somehow a lot of people are ge tting it out of proportion. Do you think that is right?

PM: Yes I think so. This is a reasonably complex issue and a complex legal judgement, it is something the High Court took a be tter part of a decade in deciding and it is a milestone decision and one which I think gives Australia a tremendous opportunity to get its relationship with the Aboriginal and Torres Strait people right.

JL: Can you understand the white population of Australia and there are an awful lot of them finding it difficult to come to terms with the fact that the Aboriginal people will be compensated in their minds. Now whether this is fact or not time will tell and it might take a long time, but the Aboriginal

people will be compensated, that they will receive more money, stories being told that 1.5 per cent of the population has 15 per cent of the land mass of Australia. I don't think the people who made those statements

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bothered to have a look at the quality of the land mass that they had, but these are alarmist statements that are being made and cause concern amongst the public. Do you understand'the concern?

PM: Yes, I can see people thinking that in some way Aboriginal people have been treated in a preferential way, but that is not true. In many countries these issues, judgements have been made by governments and by supreme courts and of course just across the Tasman in New Zealand there was a treaty of settlement, the treaty of Waitangi.

JL: Which is still in place.

PM: Which is still in place. Now, there was no treaty in Australia Aboriginal Australians were dispossessed of the land and what this decision says and it is fairly simple really, it says that where continuing association with the land can be established a native title may exist.

JL: Yes, but there is the rub, continuing association. Now if you slip that set of headphones on there in order that you can listen to the people who are going to call in that want to talk to you because I see it as being very important as some people do have what I believe to be an incorrect point of view on the subject of Mabo. Over the week and a bit that I have

been back I have done my best to explain it as I see it in light of the Court ruling, as clearly and without hysteria, but still some hysteria exists and a lot of Australians would like to talk to the Prime Minister. Here is your opportunity. Hello.

C: I don't know whether I am limited to a question or not Mr Keating, but find this, that your term of Mabo, you are creating concerns by using an interpretation of a judgement. So, right on, having said that, I will say this to you, the claims that are being made at the .... are not going to

mention Mabo is being ridiculed by the Aboriginal Affairs Minister, and you have not made a public comment on such claims. Do you agree with Mr Tickner?

PM: Oh yes, I have made public comments about them. These claims have got nothing to do with Mabo. These are some of these silly claims of NSW.

C: I have already agreed with you that in my opinion they have got nothing to do with Mabo. I am talking, do you agree, that it is a total waste of public funds making these futile claims?

PM: Absolutely. But it is not public funds that are being wasted because don't think the claims will stand at all.

C: Well who prepares the claims? Isn't the ALS and Mr Coe and a few solicitors and a few barristers and all this getting involved in this?

PM: That may be true.

C: Well where is that money coming from?

PM: Well let's understand this point, the claims haven't got a snowballs chance in hell of succeeding. They have got nothing to do with Mabo, nothing whatsoever.

C: Never mind about Mabo, why are you allowing the total waste of tax payers funds on these futile claims?.

PM: You could say the same thing for legal aid for non-aboriginal Australians? Why should we allow legal aid for non-aboriginal Australians for what you may call futile claims?

C: That cry baby act has gone down the drain a long time ago.

PM: No its not. It's there now.

C: You are making the ...

PM: What's your point?

C: The point is this, that you are as boss of this country you are allowing a total waste of funds under the guise of Mabo.

PM: It has got nothing to do with Mabo, nothing whatsoever.

C: OK good. Now do you want another question?

PM: No, you asked me about this, I am not here basically to soak up all your prejudices, I am here to answer a few questions about Mabo.

JL: Ok, but let's just clarify this. The point that you have made to the Prime Minister is that you believe that he is allowing public funds to be wasted in the form of claims through the Aboriginal legal services that as he said, don't have a snowflakes chance in hell of succeeding, his reply to that, which wasn't a bad one was if the white people of Australia are

permitted to have legal aid, which they are, is it not fair and reasonable that the Aboriginal people should also have legal aid?

C: But we are not allowed to have legal aid for that.

JL: Well aren't we, I don't know?

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PM: You can have legal aid for your particular pet obsession if you wish, and it may have justice and it may not, just as Aboriginal claims may have justice.

C: I can't afford to even walk into the solicitors office.

PM: Well you may qualify for legal aid if you had a matter of substance, that's the point.

C: Don't try and con this whole business of putting it on to what the whites can get. The whites have been held back, I am not arguing about the racial side of this business, I am arguing on the hysteria that you and your Government and the Aboriginal Affairs have caused.

PM: Now, hang on. Just understand this point, this is a decision of the High Court of the Australia, our most supreme national court. This is not a matter which has been initiated by the Government at all, it is something which the Government has to respond to, to put an administrative framework and a framework in law into place so as to hear and dispense

native title.

C: I have heard you make these claims before, but I point out that this judgement is regarding the Murray Island people and the State of Queensland. It did not say, well listen, now, we are going to make this all applicable to the mainlanders people.

PM: I think you fail to understand what the decision means.

JL: Apart from that it would have set a precedent, but you are not understanding what the decision means.

C: But Mr Keating is trying to have a settlement out of court, put it that way.

PM: No we are not. We are not trying to do anything of the kind.

C: Well what are you talking about, compensation?

PM: What is your beef? I mean don't you think that Aboriginal Australians are entitled to any land that was theirs?

C: Of course they are, they should be treated the same as everyone else.

PM: Well ok then, what's your problem?

C: I have to buy my land, why can't they buy theirs? But forget about that racial business.

JL: Hang on, let's get an answer to that question, you had to buy your land, why can't they buy theirs? What's the Prime Minister got to say to that?

PM: Well if there had been a treaty herein 1788 then the thing is maybe that the crown might have bought its land.

C: There couldn't be a treaty, Mr Keating, you know that, because there was too many tribes and clans and whatever.

PM: Well thank you for your anthropological advice.

C: Well that's in history, I am not talking about history.

PM: I think you're talking prejudice, mostly, aren't you? That's what you are really talking. You don't want to see Aboriginal Australians have any right to the land. It grates on you that they have a decision here, which is a decision in justice which you then want to focus on crazy land claims that have nothing to do with it to try and diminish its standing. That's what you're about.

C: I am not making the claims, the Aboriginals are.

PM: I think you have had a fair enough go, I understand your point. But let me just finalise this. The claims over NSW have got nothing to do with Mabo, nothing whatsoever.

JL: But the point is it is a point of aggravation to the average Australian to see monies, which they believe to be their monies, that are provided to the Aboriginal legal services being spent on claims that are futile and alarmist.

PM: Well some may be.

JL: Well its pretty alarmist to hear that they want two thirds of NSW.

PM: I know, but I don't think that the serious people who basically are involved in this issue on the Aboriginal side of things are supporting these things and they have said so. Therefore that will mean in the end there will not be big cases and long expenses.

JL: Yes, but I am simply asking you do you understand that if the people aren't equip with the knowledge, and the people are not equipped, you can hear by the first call that they are not equipped with the knowledge, but if they don't have the understanding that they are going to panic.

PM: Well, John, it is probably worth telling people just to make this point that native title is a title subordinate to the crown. That is, where freehold or

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leasehold has been dispensed in the past the High Court has held that the native title has been extinguished.

JL Gone.

PM: So if you take Sydney, the suburbs of Sydney, the settled areas, the freehold areas of rural NSW, OLD, WA et cetera, the native title is extinguished.

JL• But can it ever be restored?

PM: No, it cant be restored where it is extinguished.

JL: You see that is the question being asked by many. It might have been extinguished by freehold title, can it ever be restored, the answer is no.

PM: No.

JL: What about leasehold land?

PM: No. Leasehold to, accept for titles from 1975 onwards, which have been invalidly issued, some invalidly issued. This is one of the questions we discussed at the Premiers Conference last week and that was that some leasehold, pastoral leasehold comes in say 30 and 40 year leases. So,

let's say a family has been on a piece of land for 60 years and then its lease expires and it applies for another 30 years does the native title take over? Well the view I put at the Council of Australian Governments is we would regard that land, that leasehold, in that case to have extinguished the native title.

JL: And it would continue. So people who have had leases on pastoral property for generation after generation?

PM: It would continue. So the technicality of the lease expiring after say 40 years.

JL: How much land does involve itself in the Mabo decision?

PM: I think quite a lot of the unalienated crown land of the country. But again this is mostly in OLD, WA and some of it in NSW. But as you know you have got to drive a long way through this State through the freehold titles of the farming community before you get to large tracts of unalienated crown land. So, you are talking about a hinterland of NSW.

JL: Now, if the Aboriginal people can reclaim possession of that unoccupied crown land, that unused crown land, does that mean then that the white population of Australia can be forbidden to enter that land?

PM: I don't think so.

JL• It wouldn't be much good if that were the case, would it?

PM: Native title has factors about it other than possession of land as we know it. The Aboriginal association with land is not the association or understanding of land as non-aboriginal Australians know it. And remember this, John, the native title cant be sold, it can't be sold to you or me, it can only revert back to the Crown.

JL: Ok, now we must take another call, because that was the idea to let the people of Australia talk to you directly so that they would have a better understanding of the problem. Hello.

C: Good morning.

JL: OK, the Prime Minister is here.

C: My question to the Prime Minister, I would like to actually ask him quite a few questions on Mabo, but just a very broad question, Mr Keating, why does your Government see the Aboriginal people as a much more equal people then the average white Australian?

PM: We don't. We see them as equal.

C: Well you might say that, but all the indications are that you don't.

PM: But I think it was implied in your question that you don't. You think that non-aboriginal Australians there ought to be discrimination in their favour against blacks.

C: Not whatsoever. I don't see that at all. But myself and every person talk to, I am not racist, every person I talk to ...

PM: That's what they all say, don't they? They put these questions, they always say, I am not racist, but, you know "I don't believe that Aboriginal Australians ought to have a basis in equality with non aboriginal Australians". Well of course that is part of the problem.

C: Aren't they more equal than us at the moment with the preferences they get?

PM: It is not for me to be giving you a history lesson, they were largely dispossessed of the land they held.

C: I think there is a question over that. I think a lot of people would tell you that. You are telling us one thing and expecting us to believe it.

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PM: Well if you are sitting on the title of any block of land in NSW you can bet an Aboriginal person at some stage was dispossessed of it.

C: You know that for sure, do you?

PM: Well of course we know it for sure.

C: Yeah. Well going on to your last caller there I think he had some pertinent things to say that you couldn't answer either.

PM: Yeah I know but you hold his view, don't you?

C: Of course I do.

PM: That's part of the problem.

JL: Let's clarify the view. What is the view?

C: My question in general, I mean is with regard just to the whole aboriginal question is why does the average white Australian feel that he is prejudiced against? Why? Because of the things your Government does.

PM: Like what?

C: The preferential treatment.

PM: Are you challenging the High Court decision? Are you saying that the High Court has got this all wrong?

C: No, I am not saying that at all. I wouldn't know who was on the High Court.

PM: Well why don't you sign off, if you don't know anything about it and you're not interested, good bye. You can't challenge these things and then say, I don't know about them.

JL: Well he's gone. But you see sadly what you are hearing there is in some ways very typical of the feeling that exists and it may be a very unhealthy feeling but it exists there. What do you do to placate those people who feel that strongly, and they do feel, I talk to them every day, they do feel that they are being disadvantaged by what is being given to the aboriginal people.

PM: Well what is being given to the aboriginal people is at this stage limited land, let's say before the Mabo judgement, limited land opportunities and some income support and social justice in education and in health, so there are Commonwealth programs for health and social justice to deal

with such things as diseases which particularly afflicted Aboriginal people, like glaucoma of the eyes, and infant mortality and all these other problems they had we have tried to direct funding to deal with those problems, to extend educational opportunities to Aboriginal

people.

JL: I have always endeavoured to explain it in this fashion. That equality is what is required, equality in the eyes of the law and equality in opportunity. But in order for Aboriginal people to have equal opportunity some extra funding is required at certain stages, in certain areas,

education being one, health being another. Is that true, or not true?

PM: That's right. And also in some cases income support because often where Aboriginal people live there isn't the opportunities, and not often the opportunities that existed some time ago for employment and so some of the spending programs of the Commonwealth actually provide work opportunities for Aboriginal people. That's by and large the remit of

Commonwealth programs and spending to date. Now that money is administered by the Aboriginal and Torres Strait Islander Commission. But Mabo is a different thing. Mabo is about saying, the High Court is saying, that native title survived the acquisition of sovereignty by the crown.

JL: Ok, but the point to remember, and the point that the people need to remember is that - that High Court ruling - is extinguished by the possession of freehold title and leasehold title.

PM: Yes.

JL: And it can't be reignited.

PM: I will read you the two points. I think these are the two key points of the ...... "Per Mason, Chief Justice, Brennan Dean, Gaudron and McHugh, Native Title for land survived the Crowns acquisition of sovereignty and radical title. And then they go on to say that by Mason, Brennan and McHugh that the title to the Meriam people is subject to the power of the

Parliament of Queensland and the power of the Governor and Council of Queensland to extinguish that title by valid exercise of their respective powers providing any exercise of those powers is not inconsistent with the laws of the Commonwealth. In other words where ever a State

issues a title it extinguishes the native title. It has the power.

JL: Is it true that you could simply overthrow the whole thing?

PM: No. Because if a State sought to say it would turn all, say Crown land, into freehold, you could only do that under the Constitution on just terms.

JL: So they would have to be recompensed?

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PM: So if there were Native Title subsequently established the State which extinguished the crown land in favour of :a freehold title and thus extinguishing the native title would need to pay just terms, and that could be very expensive.

JL: Ok and those just terms would be decided, I presume, by the High Court?

PM: They would probably end up in the High Court.

JL: So we would be right back where we started?

PM: Well from a States point of view with a very large bill. See, John, can just say this what the Commonwealth is seeking to do, what we want from this is basically this, the High Court has made that decision and the things which we are requiring of these things, recognition of native title

as a legal reality and therefore bringing the land management laws of the various States up accordingly. Native Title to be treated in a non-discriminatory way on a par with anyone else's land. That Native title which has survived, that is, which has survived all of these grants of

interest in land is not now unnecessarily wiped out and that we set up-a process, a tribunal for finding out who has native title and where it is. And that the widest issues such as dispossession and social justice also be addressed. Now, they are a totally reasonable set of propositions,

that native title is now a legal reality and must be addressed, land laws must be adjusted, native title should be treated in a non-discriminatory way, that which has survived shouldn't now be wiped out, and tribunals should be established to hear and award native title. In other words what the Commonwealth Government is seeking to do is to develop a

legal framework, an administrative framework to put the Mabo High Court judgement into effect.

JL: Okay, well lets see what other listeners think about it. Hello.

C: Hello, I would just like to say to Mr Keating that all these people ringing up saying your trying to blame him for it. It is not his fault. The High Court has made this decision and he has just got to implement what they have decided for him. He can't say, well we aren't going to do this, you know, people have got to be calm and understand what the High

Court has done. They have got to accept that that is the way life is going to be now.

PM: Can I just say this as well, it doesn't in any way interfere with a title anyone in this country currently holds. So people have had fears about their farm at West Wyalong or Bathurst or something ...

JL: Where are you calling from?

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C: On the North Coast.

JL Okay, well people have had fears there too.

PM: Well I mean, those fears are groundless, that is that there is no threat to their title at all. This is basically about that which is left. This is the unalienated crown land which has not been extinguished by former and earlier grants of interest in land by state land manager, you know, State departments of lands, etc.

JL: Okay, so you wanted to tell the Prime Minister it is not his fault, you've told him.

C: I cant understand why everybody is giving him a hard time about.

PM: Prime Ministers get hard times, that I don't mind, but I ..

C: It is not that. But I think they are sort of taking it up with the wrong people if they don't agree with it. I mean, you're the one who is in charge of the country but you didn't make the decision, you've just got to try and explain to everybody. People don't want to understand it.

JL: Well people prefer to listen to their hysterical point of view because it gives them a sharper axe to grind.

C: Exactly.

PM: Anyway, you are tolerant about it. And that is the important thing and thank you for that.

JL: Okay and thanks for the call too. Another thing we must also establish, when you say it only applies to the unoccupied land that exists in this country. But surely it doesn't apply to all of that. It can only apply, my reading of it, it can only apply if a continuing ongoing association with that land can be proved.

PM: Exactly, that is why, you see Mabo, even its fullest expression, will only give to a minority of the Aboriginal community land because many of them were dispossessed of the land and therefore can't make a claim.

JL: Will it give them land or will it give them compensation as well, will it give them money as well?

PM: No. In the first instance it would give them land. It would only give them compensation if someone wanted to put an economic use on the land, mining or something else.

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JL: But they would not get royalties for mining?

PM: No. Because the minerals under the land would be reserved to the Crown as they are for non-Aboriginal Australians. You will find on your title of your home, block of land, that minerals on the thing are reserved to the Crown.

JL: Yeah, so the same would apply to native titles?

PM: The same applies to native titles. That is, that if somebody can establish the fact that or a community of Aboriginals that they have lived in a region and have had a continuing association with the land and they are rewarded a native title, any compensation they are paid is paid in relation to the disturbance and inconvenience which would come from an economic use. Can I say, John, just as a farmer who might have 2000 acres out in Bathurst or something and someone finds an alluvial gold deposit on it or wants to do something else with it, pays to that

person compensation for digging a hole in the land, driving across the land, putting it to some economic use.

JL: Well can we look at that conversely. Lets say the other side of Bourke, a group of Aboriginal people can say that they had an ongoing claim to some land there. And running right through the middle of this piece of land is a beautiful bitumen road paid for by the taxpayers of Australia. In turn, will the Aboriginal people have to compensate us for the

improvements made to the land?

PM: No, they won't because they wouldn't want the road probably in the first place, but it is not their road. Because the road will have a title to it, you understand, it will be an easement.

JL: Okay, so do all roads have titles?

PM: Yes, they will have an easement title. Not all roads, some will be just dusty roads and they may well be on Aboriginal land.

JL: But what happens if they are stock routes and the Aboriginal people say which would be their right if they were to enjoy equal title along with freehold title the same title as we all enjoy, what would happen if the Aboriginal people said, okay well I'm sorry this is our land and the road

is closed?

PM: Well the stock routes are mostly already reserved if we look at any of these maps where you see the titles expressed in various ...

JL: See these are the things that are worrying people.

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PM: Well they are mostly reserved already. So what you call a stock route where people actually use it to drive stock over vast distances are reserved. So that is really not a problem but one of the points I would like to make here John, and one I mentioned a moment ago, that is

probably the great majority of Aboriginal people will not benefit from Mabo at all because having been pushed off their land and dispossessed of it they can't now make a claim to a continuing association with it.

JL: And that is important? So in other words, there can't be a mob of people in Redfern who have lived there for 20 years who suddenly say, my mum came from the Kimberleys and I'm going back there and the land is mine?

PM: No. Because they might have been pushed off it many years earlier. There is a couple of things the High Court has said about this which think, were also part of the decision, let me read it.

JL: Is it in High Court jargon because that is difficult to understand?

PM: No. It is very easy to read. Aboriginals were dispossessed of their land parcel by parcel to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation and the acts and events by which that dispossession in legal theory was carried into

practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished and unless until there is acknowledgment of and retreat from these past injustices. Now the first sentence says, Aboriginals were dispossessed of their land parcel by

parcel to make way for expanding colonial settlement. Now that means if they were dispossessed they can't now apply under Mabo so there is sort of an inherent injustice about the way in which Mabo will now in the latter part of the 20th century apply. That it will only apply to those who were not dispossessed of the land. But for those who were dispossessed there is nothing in it for them. And that is why at the Council of Australian Governments Meeting I talked about a package for

land acquisition for dispossessed people who can't get anything from Mabo.

JL: And these people would be in the minority?

PM: No. I think the people who will be awarded grants of interest in land say as a native title will be in the minority. That is, the majority of Aboriginal people probably won't get anything from Mabo.

JL: Hello?

C: Hello.

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JL: Where are you calling from?

C: I'm calling from North Queensland. Mr. Laws said a while ago there about the back of Bourke about a bit of land, well I actually come from the back of Bourke I was born there in 1950 and was reared up there and I recently went back for a reunion and I tell you what, to walk into that pound and see Bourke NSW today and what it was in 1963-68 when I left, it was a crying shame. Your cameras don't go down the street, you don't tell the truth, you don't take photos, you get there and you cut everything out and then you put it on A Current Affair and 60

Minutes, but you don't tell the truth to Australia.

JL: Who doesn't?

C: The lot of you. 60 Minutes, bloody Current Affair.

JL: Hold on, I'm not yet responsible for 60 Minutes or A Current Affair. What do you want to do, you want to unveil the truth to us, do you?

C: The whole of the main street of Bourke is mesh and tin roller doors.

JL: I know that.

C: You can't walk up there after dark.

JL: Well Wilcannia is the same I know that.

C: Wilcannia is the same Brewarrina is the same, Cunnamulla.

JL: I know all of that.

C: Mate I can take you to a lot of places.

JL: Okay, so what is the point you want to make to the Prime Minister.

C: Well the point is how much Aboriginal have you got to have in you to class yourself as an Aboriginal?

JL: That is a convoluted question and really has nothing to do with Mabo. think you were on for a bit of a bitch about things in general, perhaps you and I can cover that subject alone at some other time. Hello?

C: Hello. I would just like to say I'm of white descent. I think I have been lucky to be born here. We have got good education and everything. This history of our country can't be changed and we have got good opportunity for education and everything as has those of black descent. And wouldn't it be good if when we are all older if we could all look

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around and say that we have got what we've got through hard work, not through court case?

JL Well the point you are making there Is what? You don't believe the Aboriginal people would get what they have got through hard work?

C: No it is not that at all. It is just that isn't it time that we just looked forward rather than the Aboriginals going for this...

PM: Well can I just say, the thing to look forward to is a country which is in its soul at peace with itself. That is not prospering in including the dispossession of another people and that is the point of the High Court decision, that is the point of the reference I just read about the dispossession injustice. I mean, we are a unique country now, this is a

multicultural country it has changed enormously since the war. It has tremendous opportunities, it is an island continent, we are the only nation in the world that has a continent to itself, we don't share a border with anybody, we are located in the fastest growing part of the world. We have the natural protection of the sea. There are great opportunities

here. But to go forward together as a people means we have to go forward together on terms on which we all agree. And to have the original inhabitants not agreeing, saying that they were dispossessed and largely disadvantaged means we will never do that completely.

Now that is why the Mabo decision is an opportunity. It is an opportunity to deal very late in the piece, but better late than never, with the injustice of Aboriginal dispossession. And that is what it is about. But it doesn't threaten, see the point about it is that it doesn't threaten anyone else's

property in these areas of Australia we are talking about, but what it does, it brings up on a basis of equality the opportunity of the original inhabitants to have a piece of the country themselves.

JL: Okay, I think that answers that, but tell me this, if the original inhabitants were given back a piece of what the High Court said was theirs and there is no denying the High Court ruling simply says that native title did exist, now if this is given back to the people that had it originally, will they then be given an opportunity to work that land as the people who

are non-Aboriginal work that land? Will they then be given an opportunity to do what the people have done who bought their land freehold and paid cold hard cash for it, will they then be given an opportunity to become self supportive? Or will they be given the land

and continue to be supported to the tune of more than $1 billion a year?

PM: Well they can be given the land and I hope in some cases, operate the land in a way which is economic and provides employment and opportunities for them. But the whole notion of Aboriginal association to the land is a spiritual association, it is not an economic association as we understand land and the value of land.

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JL: It is very hard for people to understand that though?

PM: I know, it is not a concept which I think.non-Aboriginal Australians grasp easily but it is a religious association there which goes more to working out what the dollars and cents are on 30 June. It is the actual spiritual association. I think that is the important point. I think it is one of the reasons why Aboriginal people have felt dispossessed.

JL: But if the land is given back to the people, even though they may be a minority and I get the impression that very few Aboriginal people or tribes are going to benefit by it in the long run, how then do you explain to the non-Aboriginal population that make up about 98 per cent of the

place, most of them taxpayers, how do you explain to them that their tax dollar still goes to the tune of about $1 billion a year to help Aboriginal people?

PM: Because the people it is helping are those that would never benefit often from a Mabo claim, and even in the event that they do, they still have these problems in health and in education and in lack of access to opportunities which we have sought to remedy by Commonwealth funding over the years. And we are still only just, in a sense, marking time. We probably made some progress, we've made some progress in

health but not as much as we should make I don't think, the same in education. And that is why that funding will always remain important. think there is a great gulf in the opportunities which are available to Aboriginal Australians and ...

JL: And white Australians. But it needs to be explained to the people because that is the bit of coating on the pill.

PM: Well I don't think it is bitter. I don't think Australians mind that in their budgets that they do deal with problems such as Aboriginal malnutrition and infant mortality and educational opportunities. And you notice with the Royal Commission into the Deaths in Custody, a lot of the problems flowing from that come from the problem of lack of opportunity, lack of

education.

JL: Lack of equal opportunity.

PM: Lack of equal opportunity and so the nation tries to even that up through these funding programs. Now Mabo is a different concept altogether but you see, John, if Mabo meant that a claim over Circular Quay in Sydney or George Street had any strength about it then people would have genuine concerns about their rights to interest in land and their wealth.

But this decision applies to those places where a title has not been issued and only if there is a continuing association.

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JL: See, that is the important point, and that is the point nobody wants to hear. The continuing association has to be proof of the land. So, again let me say it, I've said it a hundred times, there can't be a bunch of people In Redfern suddenly say I want all the land west of Bourke 'cause my grandmother was there because they can't prove an ongoing continuing association. And all of it is going to take years anyway.

PM: It is going to take years. And the other thing is the State government can extinguish the native title where it suits it. For instance, if they wanted to acquire your property or my property for a reason, for a school, for a bridge, for a road, for a park, then you can be notified by a State Minister, you can have discussions about the acquisition, but in the end the State has the power to resume the land and to change its title, it will then give you compensation, but you get, in the final analysis,

little say in it and if you want to challenge the decision you can go off to the Land and Environment Court. Now in the same way, they can do the same with native title. And that is, again the High Court has made that quite clear, that is that a State still has the sovereignty to extinguish a native title particularly for public purposes.

JL: But they must be compensated as we would be compensated.

PM: As we would be compensated, that is it.

JL: Hello?

C: Hello, I want to talk about Aboriginal land rights.

JL: Okay, are you Aboriginal?

C: Yeah I'm Aboriginal. I come from Kintook west of Alice Springs.

JL: What do you want to say to the Prime Minister?

C: I want to say that the Land Right Act has not helped Aboriginal people it only helps land councils. We started Kintook communities in Perth and we run a business and the land council came along and forced us to close our door.

JL: The Aboriginal Land Council?

C: Yes, the land council in Northern Territory.

JL: I see, well how could they force you to close the store?

C: They told me to close my store and at that time I said to them that I was a traditional land owner but they ignored what I said to them.

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JL: What you are telling is hardly associated directly with Mabo.

PM: I'm happy to pick up the point though. .Look, there is no doubt that in some places there is conflict in terms of the view of particular people in areas and the land councils. Now in the Northern Territory we have what is called statutory land rights. Land has been given to Aboriginal

people not by way of the common law for which the High Court envisages with Mabo but by way of a law of the parliaments of the Commonwealth and the Northern Territory. In other words, a gift of land from the parliaments of the Commonwealth and the Northern Territory.

Now how that land, the ownership and use of that land, has largely devolved to decisions by Aboriginal Land Councils. Now these are often at odds with the views of some of the people who live in some of these

regions. But again, if you ask the Aboriginal people as a people do they feel that, if you like, there is a sort of enhanced empowerment to Aboriginal people through land councils I think the answer will be in the affirmative. They would say yes to that. Whereas, if their power is fragmented over individuals and groups of individuals who can't run a set of accounts, who can't manage these properties, and who can't basically receive the proceeds or dividends that may flow from them, and who can't represent themselves well enough in particular situations where

land is being allocated that the land council does that for them. Now, this is at this stage you are not talking about Mabo, you are talking about Aboriginal land rights in the Northern Territory, we are not seeking at this stage to say everything is happy in the garden between all Aboriginal

people and the land councils, of course, it isn't. But again, on balance, are Aboriginal people better off with a land council system? and I think most Aboriginal people think they are.

JL: Okay madam does that cover it for you?

C: No.

JL: I didn't think it would but I'm afraid it is going to have to because we will spend too long on the subject and what the Prime Minister said I think is understandable. Most of us, not everybody is happy with the arrangement with the Aboriginal Land Councils, but the majority are.

Hello?

C: Good morning John, good morning PM, it is Paul Vanetti, cartoonist here mate how are you?

PM: Good thank you.

C: I've just been up to Queensland and Northern NSW. I'm now syndicating my cartoons right throughout Australia so I thought I would get out there and have a look at some of the places that I'm sending cartoons to and the enormous fear that is out there. I would be talking to

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people in pubs and just meeting editors and the fear that is out there is just unbelievable. I have never dealt with an issue a topic.

JL • Yeah well there is going to be fear ifpeople listen to nonsense and people, now let me just say this to you, you will find many people find it very easy to dislike Aboriginal people that is their prerogative to like or dislike and if they get and opportunity to throw a little more mud than they have already thrown they leap upon that opportunity. Now if

hysterical comment is going to be made concerning Mabo it will be grabbed by other hysterical people who are looking, again, for another reason to be critical of Aboriginal people. And I haven't always spoken

in favour of the Aboriginal people but you better start to tell people that it is about time to start being a bit realistic about Mabo and not using it as a hammer to belt Aboriginal people around the head or the Government around the head because neither of them are directly responsible for what the High Court said.

C: That is right, the point that I want to make here is that in politics, in anything, you are really dealing with perceptions and I hope the Prime Minister understands that and perception is everything. I deal with it every day. It is similar to, I guess we could make a comparison with the GST thing during the election, and people are saying to me that this will be the Prime Minister's GST.

PM: But look, why say things like that, and what have people got to be fearful about. This is land on which there is no title, which is not alienated from the Crown, so it is Crown land on which a claim for native title can be heard providing it can be established as a continuing association with the land. Now what have people got to be fearful about of? They

haven't got to be fearful about land under their hotel or the main street or the shops or the farms around, what have they got to be fearful of?

C: Well I think that is the point that we have got to get across.

JL: That is the point that we are getting across, that is exactly why the Prime Minister is here.

PM: That is the key point, the fact is this, what am I to do, the High Court, our most supreme national court has made a decision saying that native title survived the acquisition of sovereignty at settlement. Now the Commonwealth can stay right out of this. Right out of it. And then we would have for the next 20 or 30 years on High Court case after another. One land claim after another. And how much uncertainty would that

introduce. If the next thing that happened is a group of Aboriginal people decided rather than to rely upon Commonwealth legislation, they would then take a land claim over a certain area of NSW or Queensland or Western Australia to the High Court and then that is made. So the High Court says, look we can't handle all these claims we will put them ' i

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Federal Court. So the Federal Court then has a bank of land claims which go on from now till 30 or 40 years from now and no State mines or land Minister who want to issue a grant of issue in land could in any way be certain about who the native title holder was, there would be no law and it would be all decided by court decision one after the other.

JL: And people are now concerned about the amounts of money being spent in court procedures, and that would quadruple.

PM: Well exactly so unless there is a system of administrative law put into place to manage it, instead of tribunals to hear it where the tribunals become expert in anthropological information and the dissemination of information and which have Aboriginal expertise on them so that they know when a claimant comes that they can quite quickly determine whether there is any prospect of a native title. Unless such mechanisms are established, this could all be decided by court cases.

JL: Prime Minister, I'm going to have to interrupt you because the news is about to come along. Could you spare us five minutes after the news. We've got a couple here we would like to cover, I think it is very important we have an opportunity to summarise it and the news will be

here in about 30 seconds. So you people who are calling us from all over ...

JL: My guest is the Prime Minister, our discussion is Mabo. And it would appear from what we have heard so far that the understanding of the facts of Mabo is still distant from the minds of many, Prime Minister.

PM: Well I think that is probably right, John, but I think many other people are starting to understand what it means. See, I think there is a bit of a sort of a notion that a whole lot of land has got to be sort of handed out to groups of Aboriginal people, you know, maybe sitting somewhere waiting to be given some land. That fact is, these people have actually got to be on the land, they are actually there now, they are actually on the land now. It is not as if they are sort of sitting in Sydney waiting for a grant of interest in land somewhere in NSW, they have actually got to be there now.

JL: And will it be necessary when the time comes for them to prove that they have been there for some considerable time and didn't arrive this week?

PM: Yes, it will be like any other land claim which we have had under statutory land rights, a relatively sophisticated process of hearing and determining whether a native title truly exists. But the notion that we have got all that empty land out there and there is a group of Aboriginals a long way off hoping to be given some of it is not the situation at all. They are actually there now, they are actually living on that land now. In

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the case of the Merian people in the Murray Islands around which the case was built originally, they were still growing vegetables and occupying and using the land as they were before Cook arrived and so the continuing association was obvious. In the same way this land can not be allocated to people other than those who are currently there now.

JL OK, and can prove an ongoing association?

PM: Yes, exactly.

JL: OK, we will take some calls.

C: Thank you very much John, good morning.

PM Good morning.

C: What most people actually have no problem with the Mabo situation except of course, maybe in the rural sector, but it is most probably the ongoing benefits that they intend to worry them.

JL Can you just answer one question for me, excuse me for interrupting. Why do you think that people have an ongoing problem in the rural sector.

C: Because basically that dealing with the land on a day to day basis ... for their own survival.

PM: Can I make the point though it is not their land, it is not some non-Aboriginal persons land because if they have title to that land in the rural sector - a farm or a pastoral property, it is not an issue here, it is land unconnected with that. I think that is the point.

JL: So what the Prime Minister is saying, those people who do have a fear in the rural area, the fear is unbased unless they are using land for which they don't hold some sort of title, but if they have got freehold title or leasehold title they have not got a worry in the world. Their land can

not be touched.

C: Can I continue ... but I think the situation with most people of white background most probably, would be discrimination they feel that basically the Prime Minister stated that under his 'One Nation' statement that there will be more like a one nation situation, but there is one

hundred, there a thousand billion a year being dished out to a set group and the result is there is separate bodies to administer that group which could be taken care of quite equally by the Social Security and Ethnic Affairs and the Housing Department. Which means to say that one

hundred billion could be quite easily distributed and those people then come into line with everybody else. This is I think most probably most

22

peoples beef, is that they feel they are being discriminated against in relationship to those other people who have given the extra as you say, fundings.

PM: Why don't we try and deal with it. Your complaint is as I understand it is that Commonwealth funding for Aboriginal support and services is administered by the Aboriginal and Torres Strait Islander Commission and not by a Commonwealth department. It used to be administered by a Commonwealth department, it was administered by the Department of Aboriginal Affairs, but a period, over the last 20 years or so I think we found that that was not a successful mechanism or device to administer funds to a community which is often removed from the capital cities, in

areas where there are not a lot of public facilities, where a normal department which is issuing social security benefits just is not in a position to be able to manage programs and where everybody - the

Commonwealth's interest, the public interest, the budget and most particularly the interest of Aboriginal and Torres Strait Islander people was advantaged by having these funds allocated with closer attention to the way in which the live and the places where they are and the kinds of

programs which they had to fund. Therefore ATSIC, the Aboriginal and Torres Strait Islander Commission has now, I think, successfully played a role in doing that. The key to it all is basically justice questions, the same reasons the Commonwealth pays supporting parents benefit, the same reason the Commonwealth pays unemployment benefit is

because people need it, it is allocated on the basis of need.

C: I don't get extra money, if I run out of money I can not go and get extra money.

PM: You can if you are unemployed.

C: ... and expect it to be fixed up.

PM: You can if you are unemployed. If you run out of money and you run out of work then you qualify for the unemployment benefit.

C: I have a case just recently, a guy had actually set aside a thousand odd dollars that he had to pay the Tax Department. Two months later he was on the actual unemployment situation, they said you go away and spend that thousand dollars and then you can come back and get

unemployment benefit. He said that is allocated to the Tax Department.

JL: I don't quite understand, I lost it a bit.

PM: I can't resolve all those issues. I am just simply trying to respond to your point that in some way funds for Aboriginal people are allocated on some discriminatory basis in their favour. In fact that is not true, they are allocated to again, on the basis of non-discrimination so that social

23

justice questions can be dealt with in the Aboriginal community as they are dealt with in the non-Aboriginal community.

C: My children don't get paid to go to school.

PM: Your children might not be paid to go to school of course. But again, this is not true of Aboriginal people either, but things such as Austudy which is available for secondary school on the basis of income is available also to Aboriginal people and it is called Abstudy.

JL: Yes, but the point that he is making is that some of these payments are higher for Aboriginal people than they are for white people.

PM: But the thing is the State builds the schools, you are not building the school either, it is being built with Commonwealth and State money and that is just the same for Aboriginal communities. If your beef is that there is in some way discrimination in favour of Aboriginal people, there

is no discrimination in favour of Aboriginal people, there may be funding in favour of Aboriginal people so as to diminish the discrimination which has already occurred against them.

JL: You see it is designed, I read it this way, it is designed to create equality where equality would not be possible were the Aboriginal people not given a little extra at certain times in the areas of health and education.

C: In all my life I have never had any extras, I have always had to work ...

JL: You are one of the lucky ones, neither have I, we have all done that -most of us. There is some who can't work, some Aboriginal people find it difficult to get a job opportunity because they haven't had the education, that they generated the work ethic and in order to get that they perhaps need a little extra help at some time along the way. And that is what is considered and perceived by people like you and many other people understandably to be discriminatory.

C: I am not discriminatory, I've employed an Aborigine actually.

JL: Yes.

C: ... in the morning, he disappeared at 9:00 and came back on the following Thursday for his pay.

JL: That's right because they are not accustomed to having a work ethic, but that has got to do with upbringing and background and not very much to do with Mabo.

C: Thank you.

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JL: We'll take another one maybe Prime Minister and then wind it up.

C: Mr Laws, Mr Prime Minister, I haven't got beef as such I am just a bit puzzled. I have read the Mabo case -a couple of times ... land rights in order to settle the Queensland Coast Deregulatory Acts and the Racial Discrimination Act being inconsistent with each other. And as such every commentary you've made which have been very accurately reported are in dicta, not in the judgement itself. So don't we have to have a High Court case to actually decide whether they have land rights first before everybody all go hysterical?

PM: No, they decided. I read earlier on the program that the decision of Justice Masan, Brennon, Dean, Toohey, Gaudron and McHugh and it says this "native title to land survived the Crown's acquisition of sovereignty in radical title". In other words it survived settlement.

C: I have got here assuming the Meriam people could establish their traditional land rights et cetera.

PM: There is no point in me debating the High Court decision with you. The point I made earlier is this, that is what the High Court hear in evidence or didn't hear, this was a case that went on for a very long period of time, there is not point in you and me second guessing that. They have made their position clear. But the point I made earlier is the key point. What would people prefer, that is the Commonwealth and the States of this country organising a body of administrative law and arrangements to

hear and award native titles sensibly and to provide certainty to the whole of the Australian community and investment community or for the Commonwealth to get right out of this and say we'll just leave this to the

High Court and the Federal Court to hear one claim after another? It was the Murray Islands in the first place, it will be a piece of land somewhere in north western NSW in the second case, it will be a piece of land in Western Australia in the third case - it will be one after the other, then there will be hundreds over a period of years of claims which will be heard by the Court and no certainty while ever those claims are in

process. Or you can have the Parliaments of this country responding to the decision and setting up a body of law.

That is the right thing to do. What the Commonwealth is trying to do here is the right thing, that is to recognise the fact that a seminal change has been made, a decision has been made by our most supreme of courts saying that a native title exists.

C: They didn't. They have not said that native title exits, they said assuming it exists ...

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PM: They have. Look, there is no point in me being pedantic with you. I am reading it, I have got it right in front of me - "native title of land survived the Crown's acquisition of sovereignty".: y=

C: Assuming the High Court did not, I am going back to Professor Lane's? with the utmost respect in the world, I have got two very eminent people professionally and yourself giving different views.

PM: I'm not seeking to interpret the judgement, I am reading it to you.

C: Yes, but you are reading mostly dicta and not judgement.

PM: No I'm not. I can't sit on this program and read the various judgements of each judge. The decision is about 200 pages long, but the summary judgement is what I am reading.

JL: And the summary says clearly, I mean we haven't had one Premier want to argue the point that you are arguing and given the opportunity they would have liked to.

C: I am just going by Professor Lane's assertion on it and I am doing a barrister's course at the moment.

JL: I think you have to pay attention to the summary that the Prime Minister is reading to you in black and white right before his very eyes.

PM: It is all very simple this. In the end it boils down to this, what the High Court said if native people, Aboriginal people and Torres Strait Islander people are living on land that they have traditionally lived on and can prove an association with then they can become a native title holder. That is basically the sense of it, but where in the years since 1788 all these grants of interests in land by the Crown, by State land ministers

and mines ministers have gone on, they have extinguished the native title. Basically I am talking about native title over what is left and what is• left is areas mostly remote from the capital cities and which go beyond

the pastoral areas of this country, the freehold areas.

JL: OK, now we are going to have to call it a day there. In summary let's just clarify the situation again once and for all so that we all understand. The only claims that can be made are on land that have no title at all, no lease title, no freehold title.

PM: That is right.

JL: They can only be effective claims if an ongoing association with that land can be proved.

4,

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PM: Yes. Say for titles issued after 1975 which may be issued in a discriminatory way and contravene the Racial Discrimination Act. In those cases pastoral leases, there is a matter for judgement there about what is called revival of title. But what I have said is in terms of the

Commonwealth making law on the matter, we would hold those pastoral titles with ongoing economic use to have extinguished the native title.

JL And the same with freehold title?

PM: And the same with freehold title. With freehold it is clear. Where freehold title is ...

JL: Even after 1975?

PM: No after 1975 freehold titles could be issued invalidly. John, can I just say this to you. The Aboriginal community always seemed to be laggarded often by people, but I think people should understand this concession that they have made and it is a very important one. From

1975 to 1993 for 18 years much valid native title would have the prospect of becoming invalid and invalid non-Aboriginal title will be made valid were the Commonwealth and the States to validate these titles.

JL: Yes.

PM: Now, if you are an Aboriginal person and you had a native title and it was valid, would you voluntarily give up its validity for it to be rendered invalid and to see an invalid title be made valid over an 18 year period of thousands of titles and to do it willingly? That is what the Aboriginal community have by and large offered the Governments of this country -the agreement to validate those titles. Would a group of non-Aboriginal Australians make a similar generous offer?

JL: I would doubt it.

PM: See, how many non-Aboriginals say that is OK, look our title is valid but you the States and the Commonwealth Government can render it invalid and all those invalid titles you can make valid. I mean it wouldn't be said.

JL: No it wouldn't be said.

PM: The Aboriginal people have made this offer because they know in the practicality of administering a set of arrangements under Mabo that land was issued after 1975, it was probably issued in a discriminatory way because the land manager at the time didn`t know a native title existed. Therefore they are saying morally these State ministers didn't know land title existed, but legally we have the right to keep the validity and they

27

are giving that up. I think this community ought to understand the generosity of that position.

JL OK, the other point that I think is probably one of the most important points is confidence in the rest of the world that investment in Australia is safe and sound and that we are not going to have ongoing fights about who owns what piece of land. Surely the sooner some statutory

body is set up by the Government and the States collectively to handle all these things the sooner confidence in investment in Australia can be renewed.

PM: Yes. There are two things, that is the titles from 1975-1993 have to be validated, that means that all those valid native titles have got to be invalidated and the invalid non-Aboriginal titles have got to be validated. That is the first point which brings certainty to all those leases issued

since 1975 and then as you say correctly we need mechanisms in place to hear and award native title in the future.

JL: OK, now if compensation is made to the Aboriginal people in sizeable sums of money, will the Commonwealth see to it that that money is put in trust or invested properly so that the interest payable from large sums of money paid in compensation can go towards the billion dollars a year

now paid by the 98 per cent of other tax payers in Australia towards the support of the Aboriginal people? In other words will they be encouraged to support themselves with their own money?

PM: There is another concept here we have not mentioned and that the question of revival of title. Let me explain this because it goes to compensation. If say on a piece of native title land someone discovers an alluvial gold deposit, it may be a deposit which can be mined within seven years - mining starts, seven years later the mining is finished. There is no reason why we should needlessly extinguish the title that

has lasted all this time, thousands of years and now 200 years if you like, and then extinguish it to allow the mining of a seven year gold deposit. So, the proposition is that when the mining ceases the title revives, the native title revives. In that event the compensation would

be much less because the native title holder has not lost the title and given the fact that compensation anyway is going to go to surface disturbance and inconvenience because the right to minerals will not be vested in native title holders as it is not invested in non-Aboriginal title

holders there will be therefore no royalties, therefore the compensation is basically about the same compensation a farmer would receive if somebody drove across their land to put a transmission wire up or to put a road through there.

JL: OK, but in order to placate the people who feel that they are being discriminated against because the Aboriginal people are getting what they consider correctly or incorrectly to be favourable treatment, if large

•

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compensation payments are made then surely it would be in the interests of the Commonwealth to see that some of that money was set aside in some sort of trust fund in order that contribution could be made

to the Aboriginal people by the Aboriginal people.

PM: I think what will happen John, and this is a matter for in a sense Aboriginal Australia itself, but by and large these funds would be paid to the trust funds of the land councils and they would then be used for Aboriginal purposes - that is for justice and opportunity purposes and to the extent that there is more funds available in the normal course of land

council management that of course, complements whatever the Commonwealth is paying directly off the Budget.

JL: OK, thank you very much for your time you have been very generous with it and we should try and keep it clear in the minds of people who do tend to feel uncomfortable about it and again summarise by saying if land is covered by lease hold or freehold title it can not be touched. That

many of the claims being made by the extreme Aboriginal groups are far from realistic and will never come to fruition and unless the land is totally unoccupied and an ongoing association with that land can be proved, no land will be given to Aboriginal groups.

PM: Exactly, but I think the even greater point John is this. That if we want to progress as a country truly at peace with itself inside, that is where the opportunities available to Australians are equal opportunities the Mabo judgement does give Australia a chance to even up, to give Aboriginal people some of the rights that non-Aboriginal Australians

have had. So it is not a case of discrimination in favour of Aboriginal people, it is a case of bringing them up to rights which non-Aboriginal Australians have enjoyed. That coupled with the fact that we have as ourselves changed as a community through the migration program, through the sophistication of our society, it lets us get on with it and not

have this question about dispossession and if you like, criticism by other countries of the way we manage our domestic affairs with our indigenous people had put that aside and I think this is why the Mabo decision is a great opportunity if handled properly, but again I repeat left to the decision itself it will only affect a minority of Aboriginal people, it will only beneficially affect a minority of Aboriginal people and that is why we have to think about other social justice programs so that land may be

provided in some way to those who were formerly dispossessed of the land and can't make a Mabo claim.

JL: OK, Prime Minister thank you for your time.

PM: Thank you John.

ends.