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Tuesday, 14 December 1993
Page: 4577


Senator HILL (Leader of the Opposition) (11.15 p.m.) —Although the Native Title Bill 1993 is in an unsatisfactory state, I am at least pleased to have the opportunity to explain the coalition's opposition and to further detail the coalition's policy in relation to this very complex matter—a policy which sets down a better approach. This is a complex, emotive and potentially divisory issue which has been appallingly handled by this Prime Minister (Mr Keating). If ever there was an issue which required a carefully thought through cooperative response, this was it. But, of course, that is language that the Prime Minister does not even understand.

  It is an issue which tests our federal constitutional structure, which tests the communities' confidence in the rule of law and which potentially threatens the pace of economic development in rural and remote Australia. It is an issue that goes to the heart of Aboriginal development and the confidence of Aborigines in their society and their place within the wider Australian community. It is an issue that called for real national leadership, a cooperative federal response and a genuine effort to build community confidence in the decisions reached.

  We have none of that. We now have the states opposed to this legislation, the mining industry opposed to it, the Aboriginal community divided, pastoralists worried and the wider community confused. We have one of the most important pieces of federal legislation in our history based, as I said, on no more than what the government claims to be a fragile consensus. If ever a piece of legislation needed the sound foundation of community support, this is it. But an arrogant and inept Prime Minister, putting his own enormous ego above the national interest, is hell-bent on ramming this bill through on the eve of Christmas. It is a disgrace. The inevitable division and disunity which will flow from this ill conceived and poorly executed piece of legislation will be Mr Keating's legacy.

  We accept the existence of native title as declared by the High Court and the right of indigenous people to protection of that right of title. Having said that, sudden and dramatic turnarounds in the law do raise elements of uncertainty which many Australians find disconcerting. I remind the Senate of the established position as stated by Blackburn J. in Milirrpum v. Nabalco and the Commonwealth, which was decided in 1970, when His Honour said:

. . . a doctrine of communal native title to land does not form, and never has formed, part of the law of any part of Australia.

The accepted position in law was that the Crown took possession of a land which was regarded as `terra nullius'—a `land belonging to no-one'. It was an application of what was seen as the right to occupy uninhabited land. If one applied the uninhabited test strictly, then it clearly did not apply to Australia. But the terra nullius doctrine was extended to cover the acquisition of any territory inhabited by peoples whose civilisation was thought to be less developed in terms of ownership of property and political organisation.

  Where the settlers found societies which they regarded as better developed by their definition, they accepted that there was an existing form of native title. Canada, USA, New Zealand, New Guinea, the Solomon Islands, India and Africa are all examples of that. So it was a legal doctrine which flowed from the then contemporary assessment of the society they found. There is no doubt that over the years anthropologists, politicians and lawyers have become increasingly uncomfortable with that original assessment upon which the law of title was based—particularly as our knowledge of Aboriginal society and culture and, in particular, the relationship of Aboriginal people to the land has grown.

  I remind the chamber of the resolution of the Senate which was passed on 20 February 1975 in the following terms:

  That the Senate accepts the fact that the indigenous peoples of Australia, now known as Aborigines and Torres Strait Islanders, were in possession of this entire nation prior to the 1788 First Fleet landing at Botany Bay, urges the Australian government to admit prior ownership by the said indigenous people, and introduce legislation to compensate the people now known as Aborigines and Torres Strait Islanders for dispossession of their land.

So the attitude of the Senate was changing by 1975.

  I also remind the chamber of the Senate Standing Committee on Legal and Constitutional Affairs report, entitled Two hundred years later . . . , put down in this parliament in 1983, a decade ago—and I was pleased to be a member of that inquiry. On page 7 of that report, the committee stated that there is:

. . . growing appreciation of evidence that there were in existence at the time of white settlement Aboriginal people with complex systems of social, cultural and religious networks and of land tenure.

On page 39, the committee further stated:

  It is apparent that the Aboriginal relationship with land is complex, and attempts to define it have perplexed anthropologists. There is no doubt that at the time of the establishment of English law in Australia this Aboriginal relationship with the land was both underestimated and misunderstood, perhaps because it was beyond the comprehension of recognised English legal principles of land tenure.

So a decade ago this Senate was recognising that there was a much more complex and—perhaps this is an unfortunate word—sophisticated relationship between Aborigines and the land in this country than was first understood at the time of white settlement.

  Also, we see evidence within the international courts addressing the same issue of terra nullius. I remind honourable senators of the Western Sahara case, again decided in 1975. The judgment stated:

The nomadic peoples of the Shinguitti country should . . . be considered as having in the relevant period possessed rights, including some rights relating to the land through which they migrated.

One of their honours specifically stated:

I consider that the independent tribes travelling over the territory, or stopping in certain places, exercised a de facto authority which was sufficiently recognised for there to have been no terra nullius.

So the international courts dealing with the common law concept of terra nullius were also changing their attitude as they understood more of the nature of the relationship between land and what they referred to as nomadic tribes.

  Therefore, in some way, although it is contrary to well established law in this country, perhaps it should not have come as a total surprise to see the multi-faceted arguments adopted by their honours in Mabo No. 2. I specifically refer to the leading judgment of Brennan J. First, what he said is that, with our expanded knowledge, we have now come to realise that that basis upon which the terra nullius principle was applied within Australia does not accord `with our present knowledge and appreciation of the facts'. So basically our understanding of the relationship between Aborigines and the land has changed, and therefore the application of those facts to the law can bring a different result.

  Similarly, looking at the development through the international courts, I think it can be fairly said that Brennan J. also indicated that it was time for precedent to change. He said:

. . . if the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law . . . can hardly be retained.

In an application to apply contemporary values to the common law, he said:

. . . judged by any civilised standard, such a law . . .

that is, terra nullius as applied in these circumstances—

. . . is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned.

So the High Court found that native title rights existed and survived through settlement, though subject to the sovereignty of the Crown—and that is a position which we on this side of the chamber accept and respect.

  Whether any particular Aborigines still hold that native title will depend on whether they have maintained their connection with the land and to the extent that title has not been extinguished by acts of colonial, state, territory or Commonwealth governments; and their title will be defined in accordance with the traditional laws and customs of indigenous people. Obviously, therefore, such a judgment with so many ambiguities must introduce considerable uncertainty. It clearly leaves many issues unresolved.

  Of course, laws have been passed in this country—and perhaps one could reflect on the Northern Territory land rights laws or, in my own state, the laws in relation to the Pitjantjatjara lands—on the basis of the then accepted understanding that native title did not exist. So it is not surprising that there was a considerable community reaction against the decision. But this government would simply label those who are concerned as racists and dismiss their concerns out of hand.

  The government has also failed to appreciate how a mishandling of this matter would detrimentally affect what we are now calling the reconciliation process. Reconciliation which we support is, in terms of our Mabo policy statement—which some on the other side should read—an effort to build a just and lasting understanding amongst the peoples of Australia on the basis that we share a common destiny as citizens of an undivided Australia.

  That was also the bottom line of the Makarrata inquiry of the Senate committee to which I referred a moment ago and which we put down 10 years ago in this chamber. Clearly, building a just and lasting understanding, as we found in taking of evidence in that inquiry, involves issues of land; it cannot be developed without resolving the issues of land because of the special or, some might say, spiritual relationship between Aborigines and the land.

  The Mabo case, therefore, can be seen as contributing to overcoming what is regarded by Aborigines as a great injustice—that we fail to appreciate their relationship with the land and to understand the pain of dispossession. Nevertheless, Mabo, because of the uncertainty it has created, contains the ingredients for a backlash which would set the process of reconciliation back years.

  Instead of understanding this, this silly Prime Minister, under the guise of extending or furthering reconciliation, decided that this legislation should further extend the concept of native title as found by the High Court and thus increased the uncertainty. But for his determination to include a social justice package, the cooperative response which he could have got with state premiers to manage and administer Mabo, in fact foundered.

  The Prime Minister should have kept the issues separate; Mabo was complex enough without the Prime Minister adding to it. Mabo required certain legislative action, particularly to validate any past grants of title which might be invalid as a result of the Racial Discrimination Act or at common law; and to manage this new form of title in a way which would remove uncertainty, inhibit economic development and resolve any issues of compensation. But it should have been done in a cooperative way with the states validating title and the Commonwealth taking such action as would be necessary to facilitate that validation—and any validation again, as we state in our policy statement, must of course be accompanied by payment of just terms of compensation.

  There was no need for the Commonwealth to seek to usurp the traditional and constitutional function of the states in relation to land management. Why complicate the matter even further with a battle for turf? There is no need for the Commonwealth to build a new bureaucracy of tribunals, assessors and registrars.

  The best solution, which an impatient and power hungry Prime Minister would not accept, was one in which the Commonwealth and states worked together to validate existing titles through complementary legislation, leaving the states with the right to manage land titles in the future, provided that they would recognise the High Court decision and meet the requirements of the Racial Discrimination Act—our policy.

  In this debate others will detail ongoing concerns and uncertainty for the pastoralists which will flow from this legislation; the uncertainty for the mining industry, which will be dealt with in considerable depth by a number of my colleagues; concerns for tourist leases and their validity; forestry leases, which was raised by the latest Senate committee report; and fishing interests—I would not be surprised if that were raised by my friend Senator Boswell. These are issues not settled by this legislation and in some cases they were created by this legislation—new confusion, new uncertainty. Others will look at the constitutional doubt that surrounds this piece of legislation, also dealt with in some detail by the dissenting report of the Senate Standing Committee on Legal and Constitutional Affairs report put down a few days ago.

  In the few minutes I have remaining I want to return to the position of the Aboriginal people and Torres Strait Islanders whose interests might have been thought to have been advanced by Mabo No. 2. Australian governments have struggled to develop policy which would help overcome the disadvantages suffered by our indigenous people. They found it very difficult and, sadly, indigenous Australians are among the most disadvantaged of our community.

  Obviously, health, education and housing services are all part of the correct policy mix. But there are other parts, some of which I think we still do not fully understand. Whilst I certainly do not claim to be an expert, my experience as a parliamentarian was to sit down a decade ago and listen to the communities at Thursday Island, Broome, Mornington Island, Derby, Fitzroy Crossing, Weipa, Cairns, Yirrkala, Alice Springs, Kakimburr, Aurukun, Balgo Hills and elsewhere. It was enlightening and the same issues seem to come through today.

  What was needed, in addition to health, housing and education, was something to redress what I mentioned a while ago—the loss of identity or connection with the land. This clearly raises difficult issues and Mabo could have made a small, positive contribution in that direction if it had been well handled. The fact that it was not is one of the tragedies of the management of this particular responsibility by Mr Keating.

  Another just demand was the right of Aborigines and Torres Strait Islanders to be recognised and respected as original inhabitants of this great land. Related to that is the need for non-indigenous Australia to respect and appreciate Aboriginal and Islander culture as vital, important and enriching Australia as a whole. There is the need for us to cease evaluating Aboriginals and Islanders against our values, particularly values of success and achievement. What came through was that it was more important to encourage confidence and pride in the path each individual might choose.

  To that background, we now learn, as a result of the work of the Senate committee—I mentioned its report a moment ago and it is only a few days old—that many Aborigines are confused as to the effect of Mabo and want a longer period of consultation. Many were concerned as to what they see as the self-appointed negotiating team acting on their behalf without consent. They are concerned that the bill does not give the right to immediate exercise of native title; they are concerned with the fact that the bill is not stated to be subject to the Racial Discrimination Act; and that instead of land being controlled by its traditional owners in accordance with Aboriginal tradition and custom, the land will be controlled by corporations in accordance with corporate rules and by-laws, which is not in accordance with the Mabo decision.

  All of these issues could have been explored with much greater care if the government had been prepared for sensible debate in February. It was not, and it therefore stands condemned. It has missed the opportunity to build from the challenge of Mabo a stronger and more united Australia. The Prime Minister must accept personal responsibility for this failure. We will vote against this bill and, if we can gather the numbers, we will force the government back to the process which will build a sound foundation for native title legislation.