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New South Wales: Premier discusses the Prime Minister's 10-point plan on native title

MONICA ATTARD: Well, the only State or Territory leader so far to have paid a native title compensation claim is the New South Wales Premier, Bob Carr, who joins PM on the line now, and to speak with him, here's Catherine Job in Canberra.

CATHERINE JOB: Premier, have you set a dangerous precedent for the rest of Australia by paying the Crescent Head claim of the going market rate, plus 50 per cent?

BOB CARR: No, it's a very good precedent because my government insisted during the hearing, in front of the Native Title Tribunal, on a punctilious fulfilment of the three tests that need to be fulfilled before native title is granted. There can be no flippant or cavalier claims for native title accepted on the basis of that precedent. They had to establish descent from the original inhabitants, they had to establish continued association with the land, and they had to establish - and this was quite hard, quite a challenge - that there'd been no extinguishment in the past. That's a very rigorous test fulfilled and I think very useful.

CATHERINE JOB: So are you saying that that test would not see successful claims over all pastoral leases in Australia and therefore we don't calculate the possible compensation to be paid by going one-and-a-half times the value of pastoral land in Australia?

BOB CARR: You're going a long way ahead of me. All I'm saying is that that one successful settlement of a native title claim that we've seen on mainland Australia, which is in Crescent Head, New South Wales, really does establish that Aboriginal claimants, native title claimants, have to undergo a rigorous process. We insisted on that, and we made it work. If I can come to the question you touch on next - I think one of the satisfactory parts of the Prime Minister's package is the fairly robust definition of pastoralists' rights. Anything to do with primary production is....

CATHERINE JOB: That's the change in the definition to be the one that's included in the Tax Act?

BOB CARR: Yes. I think that's very, very satisfactory and I'd urge my Federal Labor colleagues to be sympathetic to that part of the Prime Minister's package - that is presuming that it emerges in the legislation to be presented to Parliament, as it was in the 10-point plan. I think it's very important to send a message to pastoral leaseholders that they've got the sort of security that Paul Keating committed himself to in his 1993 legislation. But, on the other hand - and we began the interview discussing this - on the other hand, it's important to maintain the spirit of Mabo, the gains that Mabo and native title represented for the Aboriginal people of this continent. If we can do that while, at the same time, assuring pastoralists who have gone through hell in the recent drought, face depressed commodity prices, that they've got security - as Paul Keating promised them in 1993 - then I think that's a very healthy outcome.

CATHERINE JOB: Well, Mr Carr, how much, based on the Crescent Head case, do you think you could be up for in compensation in New South Wales?

BOB CARR: Oh, that, again, no one can calculate, and I think....

CATHERINE JOB: So you can't give us a dollar value. Can you give us a percentage of that which you would expect the Commonwealth to pay since Mr Howard has said the Commonwealth doesn't expect the States to pick up the whole tab?

BOB CARR: No, you can't, but nobody can, nobody can. I think you've got the wrong focus at this stage. How can you make a calculation before Federal Parliament has determined the application of these principles?

CATHERINE JOB: Right. So you can't give us even a percentage of the compensation payable that you would expect as the bottom line for you, that the Commonwealth would pay...?

BOB CARR: No, nobody can at this stage, no.

CATHERINE JOB: Okay, so how's the Prime Minister going to work out with you what the compensation guidelines are, which has to be done before he drafts the Bill?

BOB CARR: Well, no, I think you've got it wrong in the relentless focus you've got on compensation. What is important is that we establish the principles that govern the application of native title, in view of the challenge that the Wik decision of December last year has posed, and then we look at the question of compensation.

CATHERINE JOB: Okay then, what concessions did you get from Mr Howard today?

BOB CARR: Well, I think the ... I said to the meeting, as you'd expect a Labor Premier to say, that I welcome the fact there was no blanket extinguishment and that there was no gutting of the Racial Discrimination Act. I welcomed the fact that settlements like Crescent Head would be possible under this 10-point plan. I also said that I particularly welcomed the robust definition of the rights of pastoral leaseholders where their activity, the dominant activity on the property, is primary production. That is a very welcome message of security to the western division of New South Wales. Two other concessions: one was security ... the Prime Minister promised to consider the package I put forward that would give security to the small mining leaseholders at Lightning Ridge and, secondly, that the gains that New South Wales made back in 1983 when it came to statutory Aboriginal access for hunting, fishing and gathering purposes that are enshrined in Neville Wran's Aboriginal Land Rights Act of 1983, would be protected. That is that we could have this regime continue to apply in New South Wales.

CATHERINE JOB: So you're not at all concerned then that this proposal by the Prime Minister effectively does extinguish, that the bar across which traditional owners will have to leap to prove native title rights will be so high as to effectively eliminate nearly all of them?

BOB CARR: Well, what are you addressing with that comment - the co-existence of native title on pastoral leases or the statutory access right?

CATHERINE JOB: Well, it wasn't a comment, it was a question. Are the changes that Mr Howard proposes making effectively extinguishing native title for most potential claimants by raising the bar so high in proving their traditional ownership and the continuing association with the land, that very few of them will be successful in such a claim?

BOB CARR: Well, I'd simply say that when it came to Crescent Head, New South Wales was able to argue for a rigorous adherence to those sorts of principles, so I don't think that is a difficulty. I mean, what the Howard package does do is to provide security for pastoral leaseholders who are out there in the tough conditions of the western division of New South Wales, seeking the sort of security that was promised them by Paul Keating in 1993, and I think that's reasonable. I think it's reasonable to say that where the dominant purpose of farm activity of these pastoral leaseholders is in fact primary production, you should not be forcing a farmer to negotiate when he wants to plant crops or put in a dam - even if he wants to offer some tourist accommodation at the back of the property, providing his primary purpose continues to be primary production. I think [...] and that's not at all in conflict with the spirit of Mabo or of Paul Keating's Native Title Act of 1993 - in fact it's entirely consistent with it.

CATHERINE JOB: Okay, Mr Carr, so you've urged your Federal Labor colleagues to endorse the new definition of legitimate farming activity. Would you urge them also to endorse, as you seem to be doing, the whole Howard package?

BOB CARR: Oh, no, I'm not. I'm saying, of the Howard package, I'd rather be debating these 10 points than the single point that Rob Borbidge and some of his National Party colleagues have put forward as the agenda on this issue. Apart from my emphatic support for the part of the Howard package we've just been discussing, I'm perfectly willing to admit debate on the other points. What I said today, after the meeting, was that I support the structure of the Howard package - those 10 points - while reserving the right to negotiate the content and look carefully at the legislative proposals that emerge. But I think it's a decent start for us to look at these 10 points rather than to have a conservative government putting a single point of blanket extinguishment and the gutting of the Racial Discrimination Act. And we ought to bear in mind that if something like these 10 points doesn't get up, then the conservative side of politics will be promoting in the national Parliament the wholesale extinguishment that Mr Borbidge and some people in the National Party and Wilson Tuckey, and other people, would prefer.

CATHERINE JOB: Mr Carr, thanks for your time.

BOB CARR: Pleasure, thank you.

MONICA ATTARD: And Catherine Job was speaking there to the New South Wales Premier, Bob Carr.