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Transcript of press conference: Parliament House, Canberra: 12 August 1993

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I thought I just might give you some words about the Mabo case, and the Wik claim and just a few general comments and then I can invite questions.

The first thing I would like to say is that the Mabo case and what it means, that is the existence of a native title in the common law of Australia ushers in a fairly revolutionary change to land management in Australia. Most countries would take ten years to grapple with a matter like this. Some have

and have never resolved the issues. We are seeking to do it within a deadline of a year. And I might say making very substantial progress. Now, that program which we outlined a year ago, or some time ago, was that is, the general year time frame, was generally known and understood, and I might

say as an aside, acknowledged by the leader of the Opposition as being fair and reasonable.

In the intervening time, the Commonwealth, which is taking the lead in trying to establish a new body of administrative law to deal with land management in Australia flowing from the Mabo decision, that is other than seeing land

issues or land claims settled by resort only to the Courts, thereby being the establishment of a body of law, so that claims could be heard and title awarded by means other then simply a long delayed process through the


Can I say in this that the clarity that the Commonwealth has tried to bring to this issue by firstly substantial ministerial time and consideration of a discussion paper which was not simply published as an officials paper, but which had been worked through by Ministers and the thirty three principles

which we published in June, which was worked through by the Ministerial Committee of the Cabinet and then the full Cabinet, much ministerial time has been devoted to this. The consequence is we have now at least some clear lines of logic and direction out there for those interested in the debate and to guide our own procedures and legislative solutions.


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Subsequently, can I say as the Government seeking to resolve many of these problems for other people, we have not had a lot of help from the States in Melbourne, who wouldn't even agree to establish tribunals to hear and award native title. Although subsequently, may I say, there has been a lot of good and cogent discussion and agreement at officials level between the

Commonwealth and the States, and not much help from the Aboriginal community, that is representatives of the Aboriginal community themselves. And that's most clearly evident in the Eva Valley meetings and the subsequent press conferences where leaders I have met on numerous

occasions have said that the Commonwealth have said that the Commonwealth didn't consult us and that Aboriginal interests are not being taken into account.

Now, I made clear to you last week that I had met Mr Dodson on three private occasions in my office for over an hour on each occasion, that a representative group of about thirty members of the Aboriginal and Torres

Strait Islander community had met the Mabo Committee of Cabinet, and a sub-group of that committee had met the Mabo Committee at Cabinet, and met members of the land councils on the evening before the Cabinet consideration of Mabo, which lasted six hours on the last occasion. So statements like that do not help, and it is one of the reasons why I think other people in the Aboriginal community have made statements. Let me just refer you to a couple, the ATSIC Acting Chairman, Sol Bellear, said after the six-

hour Cabinet meeting, at which point the Government has agreed amongst itself that we should provide a right of consultation, negotiation and arbitration to Aboriginal people, said under the heading, ATSIC congratulates the Government on the response to Mabo. "Mr Sol Bellear today congratulated the Government on the direction it has taken in response to the High Courts

decision on the recognition of a right on the part of Aboriginal and Torres Strait Island people to be involved in negotiation on activities on their land and to exercise consent rights in this respect, subject only to the national interest is a major breakthrough", he said. At Cabinet he said, I and the

Cabinet "has shown statesmanship in recognising the right to have a say in how land was used". And he went on to say, he urged the States to join the Commonwealth in this approach. That was on the occasion of those principal decisions which were taken a couple of weeks ago in July.

Now, after the Eva Valley meeting the Cape York Land Council Chairman, Mr Pearson said this, he put a press statement out, "Cape York Land Leader defends Prime Ministers handling . of Mabo and urges support from Aboriginal communities". Mr Pearson argued the Prime Minsters commitment to adjust settlement of native title is quote, " historic, unequivocal and on the public record for all to see", unquote. "Criticism that the Prime Minister has not been considering the views that have been put forward are misplaced". Now, these are very strong words, coming as they did on the day the Eva Valley meeting finished. "He has personally been the strongest advocate for Aboriginal and Torres Strait Islander community, not withstanding some

resistance from many quarters. I hope that good will between the national Aboriginal leadership and the Prime Minister can be maintained". And he


went on to say, "Mabo is a complex legal and policy issue, the most complex, legal and policy issue ever to confront this nation and the Prime Ministers public commitment of the principles of justice which Mabo represents has been exemplary."

Now, that press release was saying, look, let's not run away with the mass notions that came out of the Eva Valley meeting, and less than frank and honest commitments from those who represented that meeting at the press conference about what had really been achieved. So, you have got there two very sensible, I think, and conscientious utterances by important people in the Aboriginal community, one the Vice Chairman of ATSIC, the other the

Chairman of Cape York Land Council saying, look, progress has been made here, and substantial progress and there is good dialogue. Now that at least brings some of the Eva Valley nonsense at the Press Conference back into some reality.

Now, we were not helped either by the presentation of the Cape York Wik land claim. Now, I appreciate the statement Mr Pearson made, the one I just quoted to you, but the Land Council which he chairs, being advised as it is by the same group of barristers who took the Mabo case to the High Court, decided to open up a whole lot of other issues while we were trying to define the principles of Mabo number two. That is, when we are trying to construct a body of administrative law to establish native title and the common law of Australia and to dispense it and award it, in comes the larger issue of things like mineral rights, fiduciary duties and what have you. Now, I should have thought it was in the Aboriginal and Torres Strait Islander community's interests that the Mabo number two issues were settled. That is, if the Government of Australia was trying to construct a principled approach to Aboriginal traditional customs and value, by enshrining an administrative process to see common law translated into ownership of title, then that was best done and settled before a whole new range of issues were opened up.

Now, Mr Justice Drummond said at the directions hearing in Brisbane on 30 July 1993, he warned that the case might take five to ten years. So whatever the value of the so-called Wik claim, and the Cape York Land Council claim it

is no help in solving the principal matter of Mabo number two and native title. But it is there, it is there, and so we have to deal with it. Now, in all of this then we have of course the States, and we have amongst them Queensland, who feels that it has been threatened by the Wik claim and that its response -despite the fact that Justice Drummond says the case could take five to ten years - wants it resolved by 20 August this year, a totally absurd proposition.

Now in all of this, because we have States behaving - or in Melbourne misbehaving - on the one hand, the Eva Valley press conference trafficking in gross untruths and failing to recognise the great progress which has been

made, Queensland wanting rinky-dink solutions by 20 August to quite complex and deep seated legal problems, and all of this because the Commonwealth is not batting them back as though they were ping pong balls we have some in the media confused. Well let me tell you the least confused


body in this country on this issue is the Commonwealth Government. The least confused.

I noticed the Sydney Morning Herald prattling along this morning displaying its modest knowledge on the subject, telling us about how we ought to be conducting the Mabo debate. As I say, in most other countries this would be a decade process not a one-year process. So, let me say this, that I for one at this point am very clear about the principles underlying Mabo two and our approach to them. But we are still working through them and I think the Cabinet would take that view. Let me just again repeat the point, this is a complex issue and one where Aboriginal rights need to be kept in focus, where there has to be a just and sensible settlement that works so that the whole country feels this issue is resolved and resolved responsibly and


Now they are the key points here. And they are the things which we will do. Now, in the static which has followed it, don't confuse static for a failure to understand principles or behaving in a principled way, because the Commonwealth will not behave in an unprincipled way.

Let me just now go to the question of Queensland and the issues there. These issues as you know are quite complex, this Wik claim is quite complex. Our view was to deal with the native title aspects of Wik by the generic

legislation of Mabo. Wik has a number of themes running through it, one of them being that, as the High Court shifted the goal posts in 1992 to establish that there was a native title, part of the Wik claim relies upon the establishment of that native title and the treatment of that native title. Our view has always been that we would deal with Mabo in a generic way, with generic legislation which would at the same time encompass Wik problems and concerns, as I indicate in my letter to Mr Goss which I published to you. We have had the Cabinet considering this matter a fortnight ago, we have

had an officials group working on it and we will be discussing the issues on the basis of a preliminary paper from officials early next week.

So, in other words we have had a parallel process of Mabo and Wik running side by side, and an extent that those things in the Wik claims that relate to native title are there, they will be dealt with by the generic native title solutions under Mabo. But there are things in the Wik claim which are about other then native title and they go to things such as a breach of fiduciary responsibilities, and they go to the validity of the leases which were issued in

1957. The key point, I think, here is this, and I say this in the letter: it is one thing for the Commonwealth to legislate to provide certainty where a Government has acted, actively sought to act in a non-discriminatory way, in other words, a Government to all intents and purposes has sought to act in a

non-discriminatory way, or acted out of innocence that there was a native title in our common law, which would have been the case before 1992.

It is one thing to seek to validate that sort of non-discriminatory, let's say, innocent, actions by a Government, and quite another to seek to use

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Commonwealth legislation which is discriminato ry to provide coverage for discriminatory action, or action which may be found to be in wilful disregard of particular interests or actions which may be found to be fraudulent or defective in some way. In other words the ve ry point of a racial discrimination

act is to prevent racial discrimination. And the first time, or one of the first times that there is a serious discrimination which is racially based comes along, what are we to do? Suspend the act. Because this word, validation,

that's what it means. Validation is code for suspending and overriding a racial discrimination act for something which is discriminatory.

This question of precluding the rights of any Australian to pursue existing legal remedies is another question again. That is, let me tell you at the moment we have got an action against the Commonwealth by the No rt hern Land Council against the Commonwealth and Ranger Uranium. Now what should we do? Just pass a law so as to prohibit that claim going ahead? And

if we pass a law which concerns Aboriginal people, is it discriminatory and would it otherwise be in breach of the Racial Discrimination Act? And why would a Government pass an amendment to an Act which is supposed, the

point of which is, to stop discriminatory behaviour? Or, let's say a resumption of anyone's land. If someone has their land resumed and they want to appeal the matter, do we say no, we will override your rights of appeal? Australians have a right in law to recourse to the law for appeals. And the notion of

validation which is code for overriding their rights ... if it is a right which has been overridden innocently because they didn't know in this case a native title existed, or that there was no intended discrimination, which the Aboriginal community themselves accepted for 1975-92 titles, that's one thing. But to go and do it where there has been wilful disregard of people's

interests, or where these leases for a number of reasons may be invalid in there issue is quite another matter.

Now at this stage Queensland hasn't told us what it wants to legislate. The view is that, let me paint this picture to you. Wik is like a whole lot of issues, a whole lot of nuts. As I understand from Queensland they want a steam hammer to crack all at once. One of those nuts happens to be rights other Australians enjoy before the courts. If you overrule Aboriginal rights to go

before the courts you do something discriminato ry , and if you do something discriminatory , is it reasonable to ask the Commonwealth then to suspend the Racial Discrimination Act by a validation? And of course it isn't.

In other words, Queensland seeking very - extremely - wide cover from the Commonwealth, and cover we could only afford to give it if it tells us exactly what its legislation is. But the notion that, yes, we should say at a press conference or by letter, yes, we will validate your legislation not knowing what

it is, and where it may possibly be discriminatory and obliterating rights that all other Australians enjoy ... in which way could we honourably validate such legislation?

Can I just say one thing about fiduciary duty. There is no guarantee that the claims for a breach of fiduciary duty would succeed anyway, but there is a


question of general fiduciary responsibilities and specific ones. Only one Judge in the High Court case, Justice Toohey, accepted that the crown owed a general fiduciary obligation to indigenous people, that is, to recognise and protect native title. But other Judges in Mabo II do not seem to support the

existence of general fiduciary duty or trust, simply because the Crown could extinguish the native title. What they are saying is that, if the Crown can extinguish a native title, therefore you are in a fiduciary relationship with Aboriginal people, therefore you owe them a trust. Now there is a question there, a general question, but whether, there's a specific question ... what the

Cape York Land Council is alleging is that there is a specific trust entered into, a responsibility entered into by Queensland many years ago, and that these leases may be invalidly issued. Now that is not a general fiduciary responsibility, but a specific one.

Now, let me make two other points to you. None of the Wik claim covers any of the current leases of CRA, of Comalco. It is future leases. Mr Pearson put out a statement today and I will read some of it to you which I think permits some argument about this question. He says this, "No one has questioned the proposition that CRA will not secure finance for the purchase of the

Gladstone Power Station and the expansion of the Boyne Island smelter unless it has secure title to its leases south of the Embley River. What real assessments have been made as to whether the time limits set by CRA and the dire• consequences predicated on non-compliance are anything but artificial pressure tactics. Is finance being sought by CRA on the basis of

mining bauxite reserves south of the Embley River, which by its own admission will not happen until next century, or is the investment in Gladstone predicated at least until next century on mining existing reserves north of the river? Over what term will loan funds by repaid? Is repayment of the loan dependent the exploitation of bauxite reserves south of the Embley

River? It must be remembered that the Wik people have not said they will not stop mining on their traditional lands".

So they are saying, CRA is making the point this has all got to be decided by Christmas, but really do they need to have the clarity about the leases south of the Embley River to say that they can finance the Power Station. You might remember that the Commonwealth has already entered into, with Queensland, given them tax compensation for the sale of the Gladstone

Power Station to CRA last year. We have already supported the State Government in that project. Now these are questions that need to be asked but, whatever the questions, Mr Ralph makes clear in his letters that, "our agreement with the Queensland Government caused the decisions to be taken on these proposed investments by the 31 of December next." Well that

is an agreement, that doesn't go to actually whether the projects are financable without clarity of title South of the Embley River. But as the Cape York Land Council Chairman again makes clear, he said that "Aboriginal people are prepared to consult and negotiate on these points. Future

activities south of the Embley River might sensibly be resolved by negotiation rather than legislation. Regrettably neither Queensland nor CRA seem to have considered negotiation with Aboriginal people." In other words instead


of going along to them and saying, look, we want to mine below, south of the Embley River, and talk about the issues, they have said, "Here is a couple of deadlines, you meet them, bring in a piece of law which may be discriminatory, and you get that Commonwealth Government to pass

legislation which suspends its anti-discrimination legislation."

Now, these are matters of great substance and the idea that they can be pushed off in press releases or midday programs, or AM programs or the rest, is of course wrong. Now can I also say that Mr Ralph also makes clear in one of his other letters to me that the Wik claim goes very much beyond Mabo and native title.

So let me conclude on these points: I am writing to Mr Goss today, Tell us what you need, show us your legislation, we will see what we can do. If, because of native title. Because the goal posts shifted in June 1992, there is a problem with these leases under the principles which we have enunciated

saying that we will seek to provide validity of title to leases affected by native title, we will consider it. At the moment we are saying leases between 1975 and 1992; that, leases before 1975, we will consider it. But if your legislation, when you show us, is really discriminatory and then you want us to validate,

so-called, by passing legislation which suspends the Racial Discrimination Act, then that is of course an entirely different matter. Now I say to him that reassuring generalities are not enough. We need drafted, detailed solutions. This is the process on which my Government has embarked, I can only enjoin

you to continue with us in it. Now that is an invitation that I leave open to him. But the Commonwealth is not going to be forced into the question of validating, by suspending the Racial Discrimination Act, discriminatory actions carried out in the past, and in so doing remove from Australians, in this case Aboriginal Australians, a right which all other Australians have to

litigation in the courts. No matter how inopportune the Wik case and its portents have been for the resolution of Mabo II.

J: Prime Minister, if validation is code for overriding Aboriginal rights, why did the Attorney General say the Federal Government would validate the Comalco titles?

PM: Well, he was talking about, when he was talking about this he was saying - let me make this point to you. Firstly, in the peace plan proposed by the Aboriginal community when they first met the ministerial committee of the Cabinet, they offered support for the validation of leases between 1975 and 1992. In other words, they were prepared to see eighteen years of what they believed to be

invalidly issued title be declared valid, and eighteen years of valid Aboriginal, native title, be declared invalid. A pretty reasonable gesture on their part. Yes, well in return for compensation. Now, it's that to which the Attorney General refers.

J: But he was referring to the Comalco leases..


PM: No he says that, ".. Essentially what the State Government requires is a commitment from the Commonwealth that the Racial Discrimination Act would not overturn any legislation which they may enact in order to validate mining interests which may have been invalidly granted due to

a range of issues particularly breach of duty or breach of trust . And that's where there seems to be the confusion. And that's where it is necessary that we make it perfectly clear that the Commonwealth will be sitting down and resolving this issue with the Queensland

Government which would be handled through the general Mabo legislation or maybe through specific legislation..".

In other words, he's saying, look, essentially the State Government wants a commitment from us that the Racial Discrimination Act would be overturned for a number of reasons, including these things. We're saying we will consider these issues in the context of our general

generic Mabo legislation.

J: Didn't he refer to the possibility of special legislation, I think, on the previous page of the transcript?

PM: He did, but again he also makes clear what the timing would be. He says, "but if it's necessary within particular aspects of the claims involved to have specific legislation then that may be a little later. That is, after the generic legislation has been presented. In other words, when we know what we're doing in terms of the principles with Mabo

and the Mabo legislation, if there was then an incapacity within that general legislation to cover off this problem, he's saying we could look at specific legislation.

J: So validation is not always code for overriding Aboriginal rights?

PM: No, well I didn't say that. What I said was that if - understand what I've said to you - if leases were issued in a non-discriminatory way or where, innocently, the issue of the leases cut across native title, then therefore I think the question of validation is a much easier one. That

is, to suspend the Racial Discrimination Act, to say it's validated it. But where there is some sort of wilful or deliberate attempt to issue leases which particular Aboriginal communities would now regard as invalid

and where they seek redress in the courts, an override here or a validation there does not have the appropriate or honourable connotations that the first one does.

J: Mr Lavarch didn't put those qualifications I think he said ... inaudible... the Comalco leases would be validated.

PM: No, well, that is not right. I don't think you can find a reference in there saying that line.. I mean, let me make this clear, I say this in the letter, we would like to see the Comalco investment go ahead.

The Commonwealth has already given tax concessions to Queensland for the sale of the Gladstone power station to Comalco. Comalco wants to put another smelter in and it wants the power. And it makes sense therefore to pick up the power which is around. They want an

assured supply of power with Gladstone. If they get an assured supply of power and they get a surfeit of power they can fit it into the grid. That's fine.

But, I mean the question that is raised by the Northern Land Council, is do they need all these leases, after the turn the century to actually validate, or to actually fund the power station acquisition? Now if those leases can be provided in a way which lets that investment go

ahead, then that's fine by us. That would be a reasonable objective of anyone to hold. But, you know, the notion that the development ethos or the development objective should override - I mean the Queensland Premier put this notion the other day like, in Labor terms,

he said, "I thought, you know, we were basically interested in development and jobs".

Well we are. But we're also interested in the rights of minorities. And hope we always behave, principally, with principle about those rights.

J: Prime Minister Keating, your remarks in your letter, you say on a couple of occasions, "Notwithstanding any remarks made by commonwealth ministers", then who are you referring to if you're not referring to Mr Lavarch?

PM: Where am I saying that?

J: You're saying that on page two in the second paragraph (of the letter to Mr Goss)

PM: Yes, well, I'm saying there, "Notwithstanding any remarks by Commonwealth ministers" in other words, that is, Mr Goss gleaning from the remarks that which he wishes to interpret. I'm saying its hard to see - I say further - "Notwithstanding any interpretation that may

have suited you". I'm saying, its hard to see how we can reach firm conclusions on the scope of any Commonwealth legislation without this. That is, without an appropriate due process. I mean, the key point in here is this; that the portents of this issue require, above all

else, due process. This is one place where due process is a total necessity.

This is a time where land management principles are being decided and rights to land that should be decided with the right legal advice, with the right consideration of the principles by the Cabinets that are involved, by appropriate consultation and dur process.


J: If it requires due process Prime Minister why did it take nine days for your government to inform the state governments of what the Cabinet decision was?

PM: What do you mean?

J: It took nine days before a letter was sent to the state governments saying what the actual decision of the Cabinet was on Mabo a fortnight ago.

PM: Well so what? Nine days in matters which take decades, normally. Look, what are you talking about for God's sake?

J Your're saying that this is a very important issue....

PM: I mean you don't expect in this debate which is going on with Commonwealth officials meeting state officials intermittently every couple of weeks, where the Cabinet considers a set of positions... I've written as a matter of courtesy to Premiers to tell them what, in some

detail, only some detail, what the Cabinet had decided. But that is then fed through into the officials' process and we then try and build on principles or agreements from it. But you're not trying to suggest, are you, because we've got a nine day gap between the Cabinet meeting

and the letter that we don't have due process?

J: Well I would have thought it was fairly important, given that there's been conflicting statements from you and two of your ministers....

PM: Well a little time in the bureaucracy might have helped you Laura, to know what due process actually is.

J: Prime Minister, you say that the rest of the world is confused. The only people who aren't are the Federal Government...

PM: No we're not saying that. Laurie, listen, let me just make this clear. I'm saying whatever some people may think about this these are complex issues. We have only now worked through a number of them. But at least in that number we know where we are.

J: But should you not be trying to end the confusion which you say exists in all these other areas?

PM: Well we are. We're meeting with state officials and we've made, think, substantial progress there. But see where does this discussion come from? It comes from the Queensland Government seeking - by August the 20th mind you, you know, less than twenty days from the

date of these statements, to try and resolve in some definitive way, by commitments by the Commonwealth, issues which Justice Drummond says could take ten years, five to ten years to resolve.


J: Is this question of whether the leases were issued innocently or with wilful disregard, is that a question that the courts are going to have to decide? And if so, does that necessarily mean that the company has to wait five or ten years before they have any certainty over those


PM: Well the fact of the matter is that it's very hard to say. I mean, the key question here is are rights of Australians, including Aboriginal Australians, to be obliterated by Acts of the Parliament? That is the rights of private litigation, not land management policy principles, but

rights of private litigation. Now if the main problem here is things relating to native title and Mabo II, it may be in our generic legislation that we can resolve them. That's what I'm inviting the Queensland Premier to look at. Tell us what we want.

But if, basically, there is a belief or some sort of view that the Government of Queensland in 1957 did breach fiduciary duties to the so called trustee relationship they had with the Wik peoples, and what we're being asked to do as a Commonwealth is to comply, to connive,

in the denial of their rights and to overturn them, that's a different question.

J: But who decides on that question, is that the courts or is that the governments?

PM: In the first place it will be us looking at what ... you see, we do not know what Queensland wants. They have never told us.

J: Prime Minister, can you confirm that your position is that you will validate the Comalco leases if it can be done in a way which is not discriminatory and if that is the case why is that of the Comalco situation any different to McArthur River where the Commonwealth

happy to back McArthur River but not Comalco.

PM: McArthur river had a validation process which was subject to negotiation and consultation with the Aboriginal community. As Mr Pearson makes clear, there has been no consultation with the Aboriginal community here, and there is all the world of difference in

seeking Commonwealth co-operation for a patently transparent process as occurred in McArthur River, and one which a government carried out in 1957, arrangements for which, there could be no assurance that the process was either fair or just. There is a qualitative difference here.

J: But the McArthur River had old leases as well.



PM: But there was a process recently of consultation and negotiation with the Aboriginal community - a totally open and transparent process, a written - about, understood, commented - upon process.

J: The Aboriginal people were not happy with it thought.

PM: Let's say some were happier than others about it, but there was a process.

J: Mr Keating, isn't the inconsistency here that Mr Lavarch not only said the leases would be validated, but he referred to the possibility of breach of a fiduciary duties on leases which were issued before 1975 and repeated that they would be validated.

PM: No, what he said was, I think you have got to read it, he is on radio remember, so he is not reading a statement. What he said was, " ... Eessentially what the State government requires ..." and then he recites what they require - validation including for breach of trust - and then he goes on to say", "and that is where it is necessary". In other words he is saying that is what they want and that is where it is

necessary that we make it perfectly clear that the Commonwealth will be sitting down and resolving this with the Queensland government which will be handled through the general Mabo legislation or maybe through specific legislation. He is talking about there native title, he is talking about Mabo II, he is saying Queensland might want the

validation of all issues including breach of trust, breach of duty, but we need to sit down and talk about this and resolve it by handling it through the general Mabo legislation.

J: Or by special legislation.

PM: Or by special legislation. Special legislation is not always the same legislation, that is the point.

J: Prime Minister, are you happy with all aspects of your Attorney's ...

PM: I am happy with his aspects of it, but not necessarily the misreadings of it, the exploitation of it by other people.

J: On page 2 of your statement, who are you referring to when you say 'not withstanding any remarks made by Commonwealth Ministers'.

PM: No, you have got to read that in conjunction with the last paragraph -"... notwithstanding any interpretation may have suited you". In other words not withstanding anything Commonwealth Ministers have said, this is what I am saying to you.


J: Mr Keating, do you think the personal relationship between you and Mr Goss is affecting the handling of this and perhaps a reconciliation process between you and him might help push it along a bit?

PM: I am interested in issues and issues of principle, I am not interested basically in batting balls back about things like this. But I am not about being pressured, to see the Commonwealth pressured into taking, into suspending a law which was designed principally to protect people against discrimination, by easily and quickly suspending it.

J: Mr Keating, after Mr Lavarch made that statement it was his office that this was really saying that leases issued pre-1975 would be validated, but the Wik people would then be able to go courts and claim compensation and Mr Lavarch's office said yes, that is the correct


PM: Yes, but let me just run this simple thought past you. The High Court made it quite clear that a government issuing freehold title or leases extinguishes native title, we do not even know whether a native title exits on these lands.

J: No, but it could be breach of fiduciary duty

PM: No, hang on, we do not even know a native title ... let's say native title did exist, it may well be that the issue of these leases by the Queensland government in 1957 extinguished native title according to the judgement in Mabo 11 last year.

J: But there may still be a breach of fiduciary duty.

PM: And if there is, that is a matter for Queensland. That is the point made last week.

J: Why didn't Mr Lavarch make that claim Prime Minister?

PM: I think he has.

J: The rest of the world seems to have missed it.

PM: I think because you wanted to basically see a point of difference here and what he says is essentially what the Queensland government requires and he lists it including breach of trust or breach of duty and that is where there seems to be some confusion he says. In other words, if there is a breach of trust question which does go to other

issues other than native title then that is a matter for Queensland.

J: If that is the case then why may it still be possibly necessary to have special federal legislation for this Wik claim?



PM: That is always in a sense an option in circumstances like this where all the issues in respect of these titles are not clear. These titles were reissued in the 1980s. Does a reissued title come under the 1975-92 legislation or doesn't it?

J: Could this be left up to the Commonwealth Tribunal that you intend to establish?

J: Why not?

PM: Because it requires legislation, Tribunals can not legislate.

J: Do you plan another COAG meeting to try and bring it altogether?

PM: Not at the moment, but we are making progress at the officials level. The point I am making is simply this - this is a complex issue, a lot of progress has been made, there is not a lot of helpful remarks being made by respective institutionalised groups. That is not to say there is

not value in the progress to date or we are not making quite substantial headway. I believe we are, and I think most nations confronted with such a problem would not be making the headway we are making as expeditiously as we are making it.

J: Mr Keating, you say the Commonwealth government ... and isn't confused on this issue, Mr Goss says that he has received in the last two weeks five conflicting remarks from different Ministers, what do you think of that?

PM: He is playing basically political game in the public domain. This is not where this is going to be settled, it is going to be settled by showing us the colour of his drafting instructions, not by making points on radio programs or picking up points Ministers make. He is quite happy to

quote Mr Lavarch, quite unhappy to quote Mr Walker, but you have to know the range of the issues to know what they are saying is not inconsistent.

J: Mr Keating is it your bottom line that if Comalco's investments can only go ahead in a racially and discriminatory way it is not going, it is not going ahead at all?

PM: No, but again you want the catch-all grab and I am not going to give it you. The thing is, that is what is wrong with the debate. We just do not have the general maturity in this debate to know it is a complex set of problems, Wik is a completely differently set of issues over Mabo II.

Some of them are common because native title is common to both, but essentially, as Mr Ralph makes clear, many of the issues in Wik have got nothing to do with native title, they are to do with things like mineral


rights, they are to do with these questions about fiduciary duty and what have you. We have said that we have been prepared to use the Commonwealth override of the Racial Discrimination Act in respect of titles, the validity of which may have been called into question because

of a lack of procedural fairness and a lack of compensation. Again, have got no problem in re-endorsing that sort of sentiment.

J: If you did that do you think the investment would go ahead?

PM: As journalists you should repeat the questions, reasonable questions, which the Cape York Land Council has put, and that is, is the financing of the smelter and the power station built upon the exploitation of the leases south of the Embley river, or is the exploitation of the existing

leases, which are not subject to claim, to fund these things?

J: Is it a case of not subject to claim yet? Isn't it true that if they were to win this case over the lease that you are talking about, they could then claim the leases ...

PM: Laurie (Oakes) how can I anticipate what the claims people make over things like that.

J: But there seems to be very little difference.

PM: There is no claim over these leases.

J: But there could be, could there not?

PM: There could be all sorts of things I suppose, but so what.

J: But wouldn't the same grounds apply for a similar claim?

PM: Maybe not, I don't know. Can I just say part of this problem has been this date of August 20. I ask you this: in all reasonableness, in an issue which a federal court judge says may take five to ten years to resolve, is anyone seriously requiring the Commonwealth to make definitive and binding statements on this by August 20 supposedly so that we keep a clutch of banks happy with the legal arrangements?

Banks all around the world deal with these sorts of problems. I have been dealing with the banks related to the mining industry all of my public life and the notion that there are some sort of scared fawn business that, you sort of move your hand quickly and they all run off,

is just a bit of political bunkum which should be treated with the general contempt it deserves.

J: What is a more realistic time table then Mr Keating, is it going to take years to resolve?


PM: These things can be truncated if legislation comes in. Let me make the point with Mabo II, let's say there was no Commonwealth legislation on Mabo, what would happen? There would be another and another and another land claim for native title lodged with the High

Court, probably with the Federal Court. There would probably end up being a division of the Federal Court to do it and over a period of maybe twenty or thirty years those claims would be heard and decided. In the meantime no land manager of any state could issue leases

which would be valid, so we are saying let's try and give certainty to the process and truncate those processes by setting up in law a system of land management. But it has got to be something the whole nation subscribes to and believes is fair and reasonable and decent

and particularly Aboriginal people, otherwise they will walk around the legislation and go to the courts.

J: Mr Keating if this is a complex issue and one that may take other countries ten years to resolve, do you think it might have been a mistake to go to that COAG and try and get it all done with in one package?

PM: No, we did not try to get it done in one package. We just wanted key principles agreed. One was that the post-1975 titles would be validated, that the Commonwealth would pass an acting legislation if the States also passed legislation - because we do not validate them, the States validate the titles and we make certain that that legislation

can not be ruled as invalid under the Racial Discrimination Act. We offered that.

We offered to pick up the compensation, in return the States were to agree to set up a system of tribunals to hear and award native title, and to accept the principle of revival of title. They were the only things we asked.

J: But all these talks that are going on at the moment between the State officials and the Commonwealth officials, should they have perhaps happened before?

PM: They did. Again, the judgement was not handed down until June 1992. We had a discussion paper of substance released by the Premiers' Conference, I had sent the 33 principles, I had spoken to Premiers Fahey, Goss and Kennett two weeks before the meeting for quite long

meetings. People understood the issues there. Do not try and excuse their behaviour at Melbourne when it was, I think, not the behaviour one would expect from an executive body that should take, in the face of their knowledge of the issues, decisions of principle. But one

government did not want to see ... we have still got the conservative state talking about passing referenda to overrule the High Court decision.


It is the point I think Mr Chaney a former Liberal member made the other day and it is a correct point. Within the Liberal party there is a view that if you confer a right on a native person from the Parliaments, bestow a right, that is OK. But to have an intrinsic right is not OK. And that is their view, the view of the Western Australian government, the view of Premier Court. That an intrinsic right and the common law of Aboriginal people to land is not OK. Statutory land rights handed

down from the Parliaments of the states maybe OK, but not the other. That is what I had to deal with in Melbourne. I don't know how you deal with those things; the answer is you work at it by going through another process.

J: Prime Minister can you clarify one point out of this whole hour or so, will the Commonwealth validate Mabo's title only in circumstance where it does not involve discrimination and if that is the case how can you square that with you proposal between 1975 and 1993 to validate

those titles which does involve discrimination?

PM: No, they didn't involve discrimination ... understand what the basis of the supposed discrimination was between 1975 and 1993 - that was people, that is State Land Ministers, land managers, Lands Ministers and Mining Ministers issued leases without due process, without

consultation with Aboriginal people and without compensation, why did they do that? In the main, the answer is because they did not know a native title existed. Technically it is discriminatory, but it was in a sense innocent discrimination, that is why the Aboriginal community

themselves would be prepared to see them validated. That is potentially what we are talking about here is.

J: That is exactly the same as what we have been talking about.

PM: No, no it is not exactly the same, they are talking about a breach of fiduciary duty, they are saying that a trustee of relationship existed between the Wik people's and the Queensland government and that that relationship was breached. That has got nothing what so ever to

do with the other.

J: So it was breached, because native title was not known.

PM: No, no, native is one. There are two issues here, there is a question of native title and there is a question of simply a breach of fiduciary relationship and the second I say, is a Queensland matter. Why should the Commonwealth government in 1993 be in any way responsible for, if it were to be, if as is alleged by the Northern Land Council, a breach of fiduciary responsibility by the state of Queensland

in 1957 to the Wik people for grants of interest in land over what they believe to be their land.


J: Are you saying this case could have come on without the Mabo decision?

PM: Yes, exactly. That is why John Ralph has made the point in his letter, will find it if you insist saying that this things go beyond Mabo. There is Mr Ralph's letter, 'as I said in my letter of 7 July the Wik people's claim goes far beyond Mabo'.

J: Prime Minister, is it your understanding that Goss is asking for an indemnity against any breach of fiduciary duty by the Bjelke-Petersen government in the 1950s?

PM: I am not certain what he is asking us for, that is the problem.

J: What did he ask for in that letter that you quoted in your letter, the letter of two days ago?

PM: That letter is a letter saying yes, he is very happy about drawing this conclusion and that conclusion from what Mr Lavarch said, it did not go to these questions at all. That is part of the problem, but what Mr Ralph has made clear, distinct from the Queensland government is he wants the Commonwealth to indemnify CRA to the tune of $1.8 billion.

J: Are you interested in burying the hatchet with Mr Goss rather than any?

PM: Let me just recap on some of this. It was Mr Goss who went on the 'Sunday' program, we made it very clear to him that we already had an official process running, that is made clear in my letter to him again today. Why would he go public on a matter as complex and technical

as this on the 'Sunday' program and then subsequently on three other occasions. That is a matter for him.

J: Would you respect him of his ... would you like to ...

PM: I make the offer as plain as day in here, that is the question here is due process and good governance and this can only be done by basically working through these and understanding what Queensland proposes to legislate, to see in which way we may be able to provide

appropriate assistance in validating some of these things.

J: Earlier you said that there had been some constructive talks with the Victorian officials, do you think that you will be able to get Jeff Kennett up to the mark on a state tribunal?

PM: We have had generally constructive talks with the state officials, probably more constructive than Premiers realise. It is a matter of whether the Premiers will allow that, can I coin a word, constructiveness, to translate into their official positions.

4 1


J: Mr Keating what reaction are you hoping for out of next weeks Budget from business and the community?

PM: This has got to be the last question. I'll see what you think about it on Budget day.

J: No, not from me, I mean from real people?

PM: We'll all see on Budget day.