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Aboriginal legal adviser criticises the Government for disavowing the British inheritance of the High Court Wik decision; describes the architects of the 10-point plan on native title as 'racist scum'; response by Special Minister of State

MARK COLVIN: The Chairman of the Cape York Land Council, Noel Pearson, has launched a blistering attack on the Government over its native title legislation. Mr Pearson, who's the legal adviser on native title to ATSIC, described the architects of the Federal Government's native title Bill as 'racist scum' in a speech to chartered accountants at a Sydney hotel.

In a speech that appeared to represent a new level of intensity in the Wik debate, he justified his words by saying the Government's legislation was of such audacity that Mr Howard and his colleagues deserved no restraint on his part.

Rafael Epstein prepared this report.

RAFAEL EPSTEIN: Noel Pearson wasn't addressing his natural constituency. More than a hundred suited chartered accountants came to one of Sydney's best hotels for the usual speech and lunch. But before a blistering attack on the Federal Government, Mr Pearson passionately defended the native title rights bestowed by the High Court's Wik and Mabo decisions. He argues those rights not only have a fundamental basis in common law, but that they provide a framework for peace between black and white Australia.

NOEL PEARSON: You got 98 per cent of the Aboriginal community saying what the judicial elders of the white people have proposed as a peace deal in relation to land is a peace deal that we think is just, that we think is fair, that we think is practical, and we think is moral. And where are we at with the rest of the country? The rest of the country is equivocating; the rest of the country is abusing their judicial elders by having put the offer on the table in the first place. The rest of the country is disavowing their own law. Mabo is not a product of indigenous law. Mabo comes from the House of Lords. Mabo is a product of this country's British inheritance.

RAFAEL EPSTEIN: Describing himself as a true liberal, Noel Pearson says the Coalition is repudiating liberal values.

NOEL PEARSON: We wouldn't dare disturb the property rights of other Australians. We're the first ones to guard against arbitrary deprivation by government and by political fiat, but when it comes to the indigenous peoples all manner of national interest, every obscurity is raised in order to effect what is blatantly racial discrimination, to treat indigenous peoples and their property rights in a manner you would never contemplate treating other sections of the community. So these people who have concocted the 10-point scam, who call themselves true liberals, are not true liberals: they are racist scum - no less. So, it is absolutely obscene for racial discrimination to again re-emerge as a policy we would even contemplate. Make no mistake, we will fight absolutely desperately to save the civilised achievement of British law, no matter if the descendants of those Britishers disavow any responsibility for it.

RAFAEL EPSTEIN: Mr Pearson argued that Australians must oppose the Coalition's native title Bill or lose our only chance for true reconciliation.

NOEL PEARSON: And our laziness, our moral laziness, will confer to our descendants that legacy. Our setback, have an armchair judgment about what's going on, but taking absolutely no responsibility for our contemporary opportunity to do something for the future, will be the legacy we give our children.

RAFAEL EPSTEIN: After his speech, the ABC asked Mr Pearson if such strong language was needed in the native title debate.

NOEL PEARSON: Well, mate, if you were a member of a racial group and the Federal Government was promoting legislation that discriminated against your property rights in a racially discriminatory manner, what would you do? No matter how reasonable we try to be, no matter how much crawling we have to do, to the Australian people, to the Australian politicians, to appeal to them to be faithful to their own law, no matter what crawling we do, it's not good enough for them. They want us to agree with them that there should be bucket loads of extinguishment. It is racist. We're talking about South Africa here. That is the enormity of the situation. And if it requires a bit of vigorous language to penetrate some skulls in order for people to wake up to what is happening, then we have no other choice.

MARK COLVIN: In Adelaide, the Special Minister of State, Nick Minchin, has been listening to what Noel Pearson had to say, and he's in our studio now.

Senator Minchin, this must represent a remarkable intensification of the Wik debate, yes?

NICK MINCHIN: Well, they're very extreme comments from Mr Pearson, and I'd have to say I think most Australians are getting a bit sick and tired of the way in which people like Mr Pearson throw around labels such as 'racist scum' with reckless abandon. It is really quite extreme to regard this legislation as racist. This legislation gives much more protection to native title than does the common law itself. I mean, after all, Sir Gerard Brennan, the Chief Justice of the High Court and the architect of Mabo, actually decided in the Wik decision that native title was totally extinguished by pastoral leases. Is he a racist? The Keating-Labor Government provided in the Native Title Act that native title on pastoral leases, validated by the Native Title Act, is totally extinguished. Is the Keating-Labor Government racist?

MARK COLVIN: So when Noel Pearson says that he and the Aboriginal community are taking on the mantle, if you like, of British law, they're the ones who are upholding common law. What's your response to that?

NICK MINCHIN: Well, the Native Title Act, as amended by our Bill, will actually provide much more protection for native title than does the common law. The High Court said quite clearly in Mabo and Wik that the Crown, in the form of democratically-elected governments, can issue statutory rights which extinguish native title. Now, we're providing in the Native Title Act and in our amendments very severe restrictions on that. Native Title can only be extinguished under the Native Title Act and our amendments by agreement with native titleholders or by compulsory acquisition, which of course applies to all native title ... to all titleholders. The fact is, after our amendments come into effect, native title will still be able to be claimed over 79 per cent of Australia. We are protecting the right of Aborigines to claim native title on pastoral leases and, indeed, to claim native title on 79 per cent of Australia. It is absurd to regard that as racist, and quite extreme and quite wrong.

MARK COLVIN: Mr Pearson also seems to lump you together with Don McGauchie of the National Farmers' Federation. Do you accept that the National Farmers' Federation and the Government are in the same bracket on this issue?

NICK MINCHIN: Well, no, that's not correct. The National Farmers' Federation has sought a return to the position that was declared to be the law by the Keating-Labor Government - that is, that pastoral leases extinguish native title. The Keating-Labor Government declared that; that was the law. The Keating-Labor Government insisted that native title could not and would not be claimed on pastoral leases. Now that is the position which the National Farmers' Federation wants restored. We've said: 'No, that is not acceptable to us. We are not going to extinguish native title on pastoral leases by legislation. We will protect the right to claim native title on pastoral leases.' So, we are in fact in disagreement with the National Farmers' Federation and protecting that right to claim native title.

MARK COLVIN: Do you think the National Farmers' Federation was right to run those twister ads, which most people, I guess, have seen?

NICK MINCHIN: The National Farmers' Federation did feel very aggrieved that the position declared to be the law in 1993 by the Keating-Labor Government, has not proved to be the case. So, I understand their sense of grievance. However....

MARK COLVIN: Do you think those ads were likely to incite racial conflict?

NICK MINCHIN: Look, I thought at the time that they were an overreaction to the Wik High Court decision.

MARK COLVIN: Do you think they were likely to incite racial conflict?

NICK MINCHIN: Well, not as much as what Mr Pearson is now doing by going around calling everybody who disagrees with him, 'racist scum'.

MARK COLVIN: But don't you think that essentially that what he's doing is responding to an atmosphere which has already been created?

NICK MINCHIN: The Federal Government ... he was attacking the 10-point plan which has, as I said, rejected the National Farmers' Federation proposition that we extinguish native title on pastoral leases.

MARK COLVIN: The atmosphere - I suppose like it or not - on both sides, the atmosphere has now been cranked up to a very, very high pitch indeed. Whatever happens in the Senate, whatever happens to this legislation, you have to deal with an increasingly confrontationalist situation between white and black Australia. How are you going to deal with that? Can you defuse that and keep this legislation alive?

NICK MINCHIN: Well, I think the responsibility lies with Aboriginal leaders like Mr Pearson to tone it down, to deal with the reality of this Bill and not the imagined excesses of the Bill, which are simply not there. This Bill does not involve legislative extinguishment of native title. And I think the responsibility lies with people like Mr Pearson to contribute to the reconciliation process by dealing in the truth of this Bill and not damage reconciliation between Aboriginal and non-Aboriginal Australians by peddling the false propaganda about this legislation which he and others have been doing.

MARK COLVIN: Senator Minchin, thanks very much for appearing on P.M. tonight.