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Wednesday, 15 December 1993
Page: 4696


Senator CHAMARETTE (4.43 p.m.) —On 3 June 1992 the High Court of Australia handed down its historic decision on native title in Australia. The decision was greeted by Aboriginal people and many of their supporters with jubilation, joy and hope. After 200 years, the prior occupancy of Australia by Aboriginal peoples was acknowledged by white law. Incidentally, Australia was 175 years behind the United States in taking this position, but it, too, had come to this point 200 years after the foreign occupation and invasion of American Indian people's lands.

  To Aboriginal peoples, this is one of the first steps on the path to true recognition and justice, but it still falls far short of what they really want. What they really want is an equivalent to the treaty that former Prime Minister Bob Hawke offered them in 1988, which would finally recognise them as equals in this land and, in fact, as the original owners and occupants of this land. These are the words with which Kevin Gilbert crystallised the Aboriginal demands for sovereignty in practical terms:

A sovereign treaty is the only mechanism in law by which our sovereignty can be recognised.

A sovereign treaty is negotiated between equals.

A sovereign treaty is automatically in the constitution.

A sovereign treaty over-rides state and federal laws.

A sovereign treaty must never extinguish Aboriginal rights, but enshrine and protect our rights forever, under the Vienna convention on the law of treaties.

With all domestic options exhausted, a sovereign treaty is our only peaceful way to justice.

There can be no reconciliation without a sovereign treaty.

We owe it to the oldest continuing culture in the world to do the right thing. It is not only the people who have been calling for a treaty who see the High Court judgment as extremely conservative. It was a very conservative judgment. It was trying to balance the interests and rights of all of us who now live in Australia. It tried to act in a way that would be least disruptive to the status quo.

  Although it recognised that Aboriginal land had been illegally taken since 1788, it did not order that such lands be returned. It recognised that to do so would be unfair to all those who legally, by way of grant or purchase, own land now. It also said that Aboriginal people could not claim compensation for the theft of the past, except where such dispossession contravenes existing laws—importantly, the Racial Discrimination Act of 1975. It further said that, where land had been validly granted in the past, native title had been completely extinguished in most cases.

  The High Court decision was extremely disappointing. The one seed of truth in it, which was the exposure of terra nullius as a legal lie, led us to a different position than the one that this present legislation is taking. Because the High Court went on to say that native title still exists, or potentially exists, on all vacant crown land and that future grants over such land could still extinguish any native title on that land but could only do so in a non-discriminatory way—that is, by doing it in a way that paralleled the process of extinguishing other titles—the High Court decision gave this country an opportunity to refound itself in a totally new way, on a basis of justice. I quote from Xavier Herbert:

Until we give back to the black man some of what we have taken from him, and give it back in the same spirit that it was taken—without provisos or strings to snatch it back, we shall remain what we have always been, a people without a soul, not a nation, but a community of thieves.

There was the spirit of opportunity to redress the injustice of 200 years; nevertheless, there was good news and bad news for Aboriginal people. The good news was that opportunity, and the bad news was that the authorisation was given to governments to extinguish it. That does not mean that, at this point in time, we have to continue that extinguishment.

  For non-Aboriginal Australians there was also some good news and some bad news. The good news was that their valid titles were not at risk. The bad news—at least to some sections of the non-Aboriginal community—was that Aboriginal native title interests in land would have to be taken into account in future land dealings. For many of us, both Aboriginal and non-Aboriginal, the High Court decision has presented an opportunity to see a genuine process of reconciliation between Aboriginal people and non-Aboriginal people and a measure of restitution and reparation for the wrongs of the past.

  Unfortunately, the brutal and self-serving campaign run by conservative vested interests over the last few months has seen those opportunities recede further and further, to the stage that we are in danger that Aboriginal people will lose what little the High Court felt able to give them. Let us remember that the High Court decision was only about the six or so per cent of Aboriginal people who have been able to maintain their traditional links with the land—the traditional people with the remnants of a culture and a way of life that once covered this vast land.

  The irony is that the High Court decision favoured those who have been least dispossessed and offered nothing to those who have been most badly affected or dispossessed by colonisation. The government had an opportunity to redress that and the Greens want to raise the issue and speak on behalf of non-Aboriginal people who believe that even the High Court decision was a travesty of justice to those people who have suffered most in the last 200 years. To detract further from the High Court judgment would indeed be a further travesty of justice.

  Traditional people want their rights to land, culture and their way of life to be recognised and protected. They want to no longer feel under continual threat of dispossession. They want to be masters and mistresses of their own destiny and they want to be in control of their own sacred places in ways that accord with their tradition and laws.

  I will read into the record a letter sent to the Prime Minister (Mr Keating) by the Mindibungu Aboriginal Corporation. It expresses all of this much better than I could ever hope to. I met with the corporation at Kununurra when it was discussing the implications of this legislation. It filled me with humility that people held out the hope to the government. It filled me with shame that this legislation is all that we can offer them. The corporation gave me permission to read this letter during this second reading debate. It states:

Dear Prime Minister,

Thank you for this opportunity to express ourselves in relation to Mabo.

We are concerned that people have been misinformed on the basis of Mabo, that Kartiya people in the cities and the towns, are suspicious or scared, the way this subject has been discussed. We the people of Billiluna, do not want other peoples land or houses. We accept the Kartiya (white person) and wish to be one in friendship.

We would like the Kartiya to know the truth, our story.

We are the first people of this land, that because we have not put up rock walls or barbed wire fences, we have as strong a right to our homelands. By our nature, it is not our way to keep people out, nor to lock ourselves in.

In our culture the land is our Mother. We are born of this land; we live of this land and ultimately we are returned to our Mother.

Our language is the corner stone and the fence posts that determine where we live. Our tongue may differ from that of the other tribes, but that is what determines where we live. In friendship we recognise the strength of the other tribes language boundaries. Here in the Kimberley as in the rest of Australia our culture is one.

We do not possess land, we are a part of it. In Kartiya ways, even with title, over time possession is just a fleeting moment. A lifetime in the existence of this land is nothing.

As aboriginal people we would like you to understand we are not greedy; but we want it clearly understood that we want rights to our mother land. Rights that cannot be taken from us.

Of importance is the right to have use of the land for our purpose. Be it hunting for gundi (bush potatoe), linga (snake), and other bush tucker; the freedom to move through our lands without being impeded; the right to perform business and law of significance to our culture. The right to determine the use of the land, whether it is good or not good for us.

We understand time does not stand still; that development is needed for the growth of this country. It is not our desire to stand in the way of development, providing progress will be good for all people of this country.

We want to share in this growth, accordingly we want a fair deal for our people, our children and our future generations, that will follow in our footsteps. We are honest and fair people in our dealings and appreciate honesty and respect in negotiations. If Companies wish to use our land they must understand our culture and respect our ways.

We would like development to be done in consultation with us on these understandings. Special areas of the land hold deep significance to our culture and cannot be disturbed. We would not dream of digging up a Kartiya burial ground or drilling for oil in a Church.

With mutual respect and understanding we can make a way for the future. Develop strong links and forge fast partnerships in development, be it mining, forestry or industry.

Although we are people of an ancient land and an old culture, our eyes follow the sun to the dawn; that of a new tomorrow. We look forward to the day when Australia acknowledges our past. That we were here before the flag of the Union Jack pierced our soil. For in our time it is but a brief tear drop.

With your assistance, perhaps Mabo can unite us all. It will give to us our rightful recognition and respect, and destroy the hatred, bigotry and suspicions of the colonial past.

We thank you for listening to us.

The Chairman and Councillors of Mindibungu.

So how far does this legislation enshrine the High Court decision and match the hopes of Aboriginal people like the Mindibungu? Certainly, the rhetoric from the Prime Minister and others supporting this legislation has been very high sounding. But words come cheap, and nowhere more so than on the subject of justice for Aboriginal people. No issue has been so studied and investigated. No issue has generated so many reports. In no area has correspondingly so little been achieved.

  We have had the Woodward lands rights inquiry, the Seaman land inquiry, the Commission into Racism in Australia, the Law Reform Commission report into Aboriginal customary law and the Royal Commission into Aboriginal Deaths in Custody. How fine were all the words written in these reports; how often the actions fell much short of the rhetoric. The Royal Commission into Aboriginal Deaths in Custody is a very good example. Of the 339 recommendations put forward in its report, very few have been implemented.

  So how does the legislation measure up? Paul Keating, in his address to the nation on 15 November this year, had this to say:

. . . this week I will be proposing legislation to Parliament which meets both the spirit of the High Court's decision and Australia's responsibilities and needs.

Does this legislation really meet the Prime Minister's own benchmark? Does it meet the spirit of the High Court decision? Will it ensure that whatever the High Court gave will not be taken away and cannot be taken away by any government acting in bad faith?

  Unfortunately, the Greens believe that this legislation falls well short of the Prime Minister's own words in a number of significant areas. It takes away from the High Court decision, and in some cases gives less to Aboriginal people than what the High Court judgment gives. In other instances, it closes off avenues that should have been left to the High Court to decide in the future. The Greens WA will not be a party to legislation that leaves Aboriginal people worse off than they would have been under the High Court decision.

  One area of real concern is the relationship of the bill to the Racial Discrimination Act 1975. While the Prime Minister says that the bill is a special measure in relation to this act, in our view in order to be a special measure it has to discriminate in favour of Aboriginal people. But many of the provisions of this bill discriminate against Aboriginal people. For example, where the bill extinguishes property rights, they are the property rights of Aboriginal people.

  In addition, the bill validates past discriminatory legislation based on the legal lie of terra nullius, which could again be used to authorise further discriminatory acts. This bill does not make it clear that, where such inconsistencies occur, the Racial Discrimination Act prevails. It must be amended in order to make that quite clear.

  One of the stated aims is to preserve native title to the maximum extent possible. The bill does the opposite. Native title rights to waterways and fishing have been extinguished in a wholesale way. This could have serious implications for coastal Aboriginal communities who rely on them as a source of sustenance. In the area of commercial leases, be they pastoral, tourist or other leases, native title will be extinguished if the lease is found to be invalid due to native title.

  This is not required in order to validate. Leases could be validated with the concept of coexistence. There is a certain irony in the fact that, while it does not seem to be obvious to the government in the way that it has introduced the legislation, it is, surprisingly, an area where Richard Court is in agreement with our perception. I quote a letter from him which I received this week. He referred to the federal legislation and said:

. It contains major departures from the Mabo principles;

-it requires the extinguishment of native title rights as a condition of the validation of pastoral leases. Under the Mabo principles, native title rights are capable of co-existing with pastoral leases and other interests in land . . .

Another reason he cites for the failure of the federal legislation is that:

-it requires the extinguishment of native title rights by compulsory acquisition before pastoral leases and certain other interests in land and waters can be granted in the future. Under the Mabo principles, native title and other interests can co-exist in respect of the same area.

I hasten to add that this in no way indicates my support for the WA legislation, which extinguishes native title and replaces it with a form of traditional usage. But it indicates how ironic it is that the Premier of Western Australia, who has put up such discriminatory legislation, is also capable of seeing the way in which the federal legislation discriminates.

  The question of pastoral leases is a very serious one to the Greens. It is of fundamental importance because many traditional communities in Western Australia live on pastoral leases. What is very worrying is that little effort has been made to find out exactly who and where the people are whose native title rights will be extinguished by the action of this legislation that is under consideration today. It may well be that these people will not know until the day arrives when they are denied access or are thrown off their traditional lands.

  The Prime Minister, in his address to the nation, described this legislation as an opportunity to restore the age-old link between Aboriginal land and culture. If native title is summarily extinguished on traditional lands under pastoral lease, this bill will achieve just the opposite.

  A good example of this is the Miriuwung and Gajerrong people in the Ord River areas of Western Australia and the Northern Territory. Ninety per cent of their traditional lands are under pastoral lease, yet they have never given up their connection to their country. They have maintained their traditional connection, despite the disruptions and dispossessions.

  They wrote to the Senate Standing Committee on Legal and Constitutional Affairs. In their submission, they said that they simply refuse to accept the extinguishment of their rights by this legislation. They believe that the coexistence of native title and leases is the right way to go. I will quote from their submission:

It is the Council's view—

that is, the Miriuwung Gajerrong council—

that native title is extinguished on nearly all Miriuwung and Gajerrong land as a result of this Bill and as such it is unjust, contravenes the Racial Discrimination Act, and destroys the traditional social structure of the Miriuwung and Gajerrong Traditional Owners, and traditional groups across the north of the continent generally.

Even though existing statutory usage and habitation rights are confirmed by this Bill they remain statutory rights only not common law rights. As such they can be removed from the statutes depending on the policies of successive administrations.

Vested pastoral interests are already pressing an uncompromising and aggressive line with this Council in stating that they consider native title to be extinguished as a result of the High Court's decision and the impending Bill. Therefore the Council's constituents register their mounting fears in this area and seek an advice from the Senate Committee and the Party members concerned what their Committee and Party position is on this matter.

That is a plea from people who, in Paul Keating's words, had a ribbon of rights that has been exchanged for a basketful of rights. That is, the provisions in this bill for the conversion of pastoral lease to the native title equivalent, if it is in the control of Aboriginal people, has been done on the proviso that Aboriginal people who would have had a potential for native title rights are having that extinguished. This bill validates any pastoral lease which may be regarded as invalid because of native title rights.

  I pause at this point to seek leave to take further time than the 20 minutes that has been allocated. We did say when we voted to reduce the time from half an hour to 20 minutes that on occasions there may be exceptions and exceptionally serious matters that would require an extension. I seek the leave of the Senate to do so.


Senator MacGibbon —Can we have an indication as to how long?


Senator CHAMARETTE —I request a further five minutes. Perhaps I could incorporate the rest of my speech, if that is permissible.


Senator Reid —I guess that we would be happy to accede to it. But I am fairly embarrassed in that I have been pressing my people to keep their speeches as short and crisp as possible and to be mindful of the fact that the government, the Greens and the Democrats have between them literally dozens of amendments which still have to be dealt with. It is a pity that we are asked this, especially on the run, so to speak. It is certainly very embarrassing for me, given that I have been pushing my people all week.


Senator MacGibbon —A further point is involved here. Senator Chamarette may not be aware of it, but it is not the practice of the Senate, except for published documents, to allow incorporations. Unless we know what is in them, we are giving them parliamentary protection in the form of privilege. It certainly has not been the practice of this chamber to allow senators to incorporate speeches. I ask Senator Chamarette to wind up her remarks within five minutes and cover the essential points. I imagine that most of the things she has to say will come up in the committee stage later.


Senator McKiernan —I support the granting of an extension of time to Senator Chamarette. This matter is very important to all of Australia, but it is of particular importance to the state of Western Australia, which both she and I represent in this place.

  I think there is a lot of material to cover in addressing this matter. I think we should be as accommodating as possible. I am sure that if the request had come from the other side of the chamber we would have been equally pleased to grant the extension. I certainly support an extension of time for Senator Chamarette.


Senator Crowley —I take the point that Senator Reid has made. We all appreciate the time restrictions and I believe Senator Chamarette acknowledges that in her request to speak for a few extra minutes. I also think we should take note of Senator MacGibbon's point that it is not usual to incorporate speeches that have not been circulated in the chamber. It would be by leave that we would do that and I suspect that leave may not be given. Senator Chamarette should be allowed to take five minutes. Senator Chamarette should appreciate Senator Reid's point that she will have many opportunities in the committee stage to incorporate any other points.


Senator Panizza —I seek a point of clarification. Mr Acting Deputy President, you know that I was at least five minutes short this morning when making my speech. I want to know whether I will be given leave to finish my speech later.

  The ACTING DEPUTY PRESIDENT (Senator Calvert)—That is a question for the Senate.

  Leave granted.


Senator CHAMARETTE —I am very grateful to Senator McKiernan because he has agreed to reduce his speech by the amount of extra time I take. I accept his offer very gratefully. I hope I can cover my remarks in the time available. I will omit all the bits that refer to the failings of this present legislation because, as has been pointed out, there will be an opportunity to discuss them in the committee stage. There has been detailed scrutiny given to this bill by the Greens and other groups which have brought submissions to us. We have severe concerns. Those concerns are not being addressed by the government's proposed amendments. If the bill remains in its present form it will be clearly unacceptable to the Greens. The bill requires amendments that are far greater than the government's proposed amendments. While there are some good points they really do go back on the intentions of the bill. That is an unsatisfactory position from the Greens (WA) point of view.

  Despite such glaring faults in the bill there are many people who believe the bill has merit and want to see it passed. They claim that the land acquisition fund, the social justice package, the conversion of pastoral leases to native title, the recognition of native title, the possible overriding effect of the Western Australian legislation and the tribunal claims system make up for any deficiencies in this bill. I am afraid that the Greens cannot agree with that. The reality does not come up to the rhetoric. While there will be some Aboriginal people who will benefit under this legislation, it will mostly be those who already have something in 1993 and those who have very little may have even less.

  Mabo was about traditional people and their traditional lands and customs. Nothing in this bill should detract from that. However, there is an obligation on Australia as a country to deal with those people for whom Mabo did not represent justice or a fair reparation for the treatment that they have received at the hands of the non-Aboriginal community for 200 years.

  I will also comment on the process used to design this bill. The whole thing has been done in a very political way, like a deal. It is a very white rather than an Aboriginal way. This has marginalised and distressed the very people that this legislation was meant to be all about—that is, the traditional Aboriginal elders, lawmen and women. The way Aboriginal law would have dealt with this would be to let the elders of each community speak for their land. They respect the right of other Aboriginal communities to speak for their own lands and they stay silent on it. What we have done is try to use our white bureaucratic system to wash over the voices and the needs of those communities.

  A small and self-selected group of Aboriginal people who do represent very different groups within the Aboriginal community have chosen to negotiate this with the government. In doing that they have been dealing with the rights of other Aboriginal people. Make no mistake, despite the claims to the contrary, the traditional people have not been fully consulted as anyone who heard the evidence given to the Senate committee would know.

  Particularly saddening is the response of the opposition to this whole issue. I would like to make it quite clear that there are not just two positions in the chamber; there are three. Firstly, there is the opposition's denial of the need to redress the injustices of the past 200 years and a view that it is unjust to positively discriminate for Aboriginal people. The second is the government's position. It has a fear of fully dealing with the historical injustice because of anxiety about the consequences on the country and a desire to placate everyone, including Aboriginal interests. The Democrats are supporting the government's view and are also speaking out on behalf of those negotiating with the government for Aboriginal rights not to be further undermined.

  The Greens position is that until the truth of the historical injustice is acknowledged no healing or reconciliation is possible. If this legislation fails to at least protect existing native title rights based on the High Court's decisions it is unacceptable. (Time expired)