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Tuesday, 16 November 1993
Page: 2877

Mr KEATING (Prime Minister) (3.38 p.m.) —I move:

  That the bill be now read a second time.

Today is a milestone. A response to another milestone: the High Court's decision in the Mabo case. The High Court has determined that Australian law should not, as Justice Brennan said, be `frozen in an era of racial discrimination'. Its decision in the Mabo case ended the pernicious legal deceit of terra nullius for all of Australia—and for all time. The court described the situation faced by Aboriginal people after European settlement. The court saw a `conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal people'. They faced `deprivation of the religious, cultural and economic sustenance which the land provides' and were left as `intruders in their own homes'.

  To deny these basic facts would be to deny history—and no self-respecting democracy can deny its history. To deny these facts would be to deny part of ourselves as Australians. This is not guilt: it is recognising the truth. The truth about the past and, equally, the truth about our contemporary reality. It is not a symptom of guilt to look reality in the eye—it is a symptom of guilt to look away, to deny what is there. But what is worse than guilt, surely, is irresponsibility. To see what is there and not act upon it—that is a symptom of weakness. That is failure.

  Mr Speaker, some seem to see the High Court as having just handed Australia a problem. The fact is that the High Court has handed this nation an opportunity. When I spoke last December in Redfern at the Australian launch of the International Year for the World's Indigenous People, I said we could make the Mabo decision an historic turning point: the basis of a new relationship between indigenous and other Australians. For the 17 months since the High Court handed down its decision, the government has worked to meet this challenge.

Consultations and Objectives

  As Prime Minister, I have made our response to the Mabo decision a personal priority. The Mabo committee of ministers has worked tirelessly. A team of officials has provided continuous support. Right from the start, the government recognised the national and historic importance of a proper response to the Mabo decision, and put in place a year-long process of consultation and detailed policy development. Also right from the start, we made our twin goals clear: to do justice to the Mabo decision in protecting native title and to ensure workable, certain, land management.

  We held extensive talks with Aboriginal and Torres Strait Islander organisations, state and territory governments and the mining and pastoral industries. Our processes were open. We kept on talking—always on the basis of accepting the Mabo decision and wanting to make it work.

  One year after the decision, as part of our community consultations, we released a public discussion paper setting out the complex legal and other issues frankly and clearly, as well as examining possible ways to respond to them. Continuing this deliberate and open approach, on 2 September we released a detailed draft outline of possible Commonwealth native title legislation as a focus for public comment and for discussions with Aboriginal and industry representatives and with the states and territories. These were positive, detailed talks. They raised many important matters which have been taken up in the legislation I am presenting here today.

  I will not say it was easy. Good policy rarely is. And the result will not—and could never—satisfy everyone. If it is to be good legislation it should not even try. This legislation is principled and workable, the product of a sustained and thorough policy process.

  Mr Speaker, this has been a huge undertaking on a subject of immense complexity. The rewards for the nation of getting it right are also immense. To retreat from this challenge, to say that this opportunity is beyond our reach as a nation, beyond the limits of our collective intellect and goodwill, would be to betray not just the indigenous people of Australia but ourselves, our traditions and our future. It is to be hoped, Mr Speaker, that those who have so far confined their role in Mabo to spoiling and oversimplification will now bring a constructive approach to their examination of this proposal. The process has already seen much goodwill in the community, not least from people and groups whose interests and points of view are very different. Let us carry that goodwill into this parliament.

Key Aspects of the Legislation

  The bill has four key aspects:

  .ungrudging and unambiguous recognition and protection of native title;

  .provision for clear and certain validation of past acts—including grants and laws—if they have been invalidated because of the existence of native title;

  .a just and practical regime governing future grants and acts affecting native title; and

  .rigorous, specialised and accessible tribunal and court processes for determining claims to native title and for negotiation and decisions on proposed grants over native title land.

  Mr Speaker, this is a comprehensive and detailed bill—as it has to be. Honourable members will find that part A of the explanatory memorandum provides a useful overview. Let me now address a number of key points.

The International Convention and the RDA

  The legislation complies with Australia's international obligations, in particular under

the International Convention on the Elimination of All Forms of Racial Discrimination. As indicated in the preamble, the legislation constitutes a special measure under the Racial Discrimination Act for the benefit of Aboriginal and Torres Strait Islander people—providing as it does significant benefits such as special processes for determining native title; protection of native title rights; just terms compensation for any extinguishment of native title; a special right of negotiation on grants affecting native title land; designation of Aboriginal and Torres Strait Islander organisations to assist claimants; and establishment of a national land fund.

State and Territory Governments

  Mr Speaker, the bill recognises that the bulk of dealings in land is done by the states and territories. The bill does not seek to change this situation—on the contrary it is properly sensitive to the prerogatives of the states. The Commonwealth is, however, playing its proper role in setting national standards and establishing a national framework for dealing with native title. The bill will enable state and territory governments to validate their past grants with certainty provided they adhere to the standards set out in the bill.

  The bill specifically provides for states and territories to propose their own tribunals and arrangements for, firstly, determining native title claims and, secondly, deciding whether proposed grants affecting native title may be made. Provision is made for Commonwealth recognition of these state arrangements, and the criteria for this are set out clearly in the bill. Determination of native title claims may be in the Federal Court or a recognised state or territory body. Appeals must, however, be in the same stream in which the case was initiated.

  In regard to decisions on land use, where we have recognised state and territory processes the Commonwealth will step back. State bodies, not the Commonwealth tribunal, will decide whether grants should proceed. Such states and territories will also be able to override tribunal decisions in the state interest.

  States and territories that wish to see a national system with proper recognition of their land management responsibilities, and with fairness for Aboriginal and Torres Strait Islander people, will find it in this bill. We will be happy to cooperate with them. But we cannot accept Western Australian style legislation involving:

.  compulsory, wholesale extinguishment of native title—a title embodied in the common law, and the inherent right of Aboriginals and Torres Strait Islanders who meet the criteria;

.  the mandatory replacement of this by a statutory title—a title only conferred at the pleasure of government, and which can be extinguished in particular cases virtually at a minister's whim;

.  a land management regime which provides only the flimsiest protections for Aboriginal people—protections far less than other land-holders enjoy.

  If a government wishes to introduce a bill permitting the voluntary conversion of native title to a statutory title it may do so under clause 20 of our bill. But let Aboriginal and Torres Strait Islander people choose for themselves whether they want the native title affirmed by the High Court or some statutory alternative.

The Commonwealth's Approach to Native Title

  Mr Speaker, native title is derived from the traditional laws and customs of indigenous people. These may vary considerably across Australia. This bill does not codify native title rights. Rather it provides that, in determining native title claims, the federal or state bodies involved will ascertain the rights in each particular case. Because the foundation of our position is acceptance of the High Court's decision, the bill protects native title to the maximum extent practicable. Under the bill, native title, once determined, will be held by a body corporate representing the native title holders concerned. This will facilitate dealings in relation to the land and will endure over time.

Validation and Security for Existing Grants

  Equally, it is essential to safeguard the rights of those who hold existing grants of interests in land. This bill sets out a regime for the states to validate grants with certainty. It does not prevent states and territories from attempting to validate on their own terms. But they would do so at their own legal risk. And the Commonwealth would obviously not, in that case, help meet any resulting costs.

  Validation covers not only past invalid grants—made before 31 December 1993—but renewals and extensions as defined in the bill. It also covers invalid actions of government. And it covers laws made before 30 June 1993. Validation by the Commonwealth, or in line with the Commonwealth regime, limits the extinguishment of native title. Only validated freehold grants, residential, commercial and pastoral or agricultural leases, and validated Crown actions basically involving permanent public works, will extinguish native title. Naturally, existing reservations for the benefit of Aboriginal and Torres Strait Islander people will be preserved.

  I draw attention also to the recording in the preamble of the bill of the government's view that under the common law past valid freehold and leasehold grants extinguish native title. There is therefore no obstacle or hindrance to renewal of pastoral leases in the future, whether validated or already valid.

  Validation of mining leases will not extinguish native title rights, which can again be exercised in full after the grant, and any legitimate renewals, have expired. This is not discrimination against the mining industry, or some radical departure from existing practice. Let me quote, for example, section 113 of the Western Australian Mining Act. It states:

When a mining tenement expires or is surrendered or forfeited, the owner of the land to which the mining tenement related may take possession of the land forthwith . . .

How can we offer native titleholders any less?

Future Regime

  As well as clearing up the uncertainties of the past, this bill provides for the future—it delivers justice and certainty for Aboriginal and Torres Strait Islander people, industry, and the whole community. It provides for the determination of native title and for dealings over native title land. Generally, governments may make grants over native title land only if those grants could be made over freehold title.

  This test is founded directly on a principle of non-discrimination. A government may not make a freehold or leasehold grant to somebody else over your or my freehold. If our title is to be extinguished, a government must acquire it and only for the purposes set down in compulsory acquisition legislation, and you or I must be given the protections involved. By contrast, a mining grant can generally be made over your or my freehold. It will be exactly the same for native title.

  This is a clear, fair test which land managers in all jurisdictions can use. It does not mean that native title will amount to the equivalent of freehold in all cases. Where native title has been established, or where there is a registered claimant in the federal or state systems, the bill provides a process of negotiation and, if necessary, determination by the tribunal on whether a proposed grant should proceed. The relevant minister will be able to override tribunal decisions in the state or national interest. This emphasis on Aboriginal people having a right to be asked about actions affecting their land accords with their deeply felt attachment to land. But it is also squarely in line with any principle of fair play. It is not a veto.

  The time frames set for notification, negotiation and arbitration are tight but fair. Provision is made for expedited processes where a particular grant would not involve major disturbance to land or interference with the life of Aboriginal communities. Moreover, classes of grant can be excluded from the negotiation process altogether where they would have minimal effect on any native title. Certain prospecting and exploration permits would be likely to fall within this category.

  Where native title has not yet been determined, governments will be able to ascertain whether there is a credible native title interest in land over which they wish to make a grant. Also, for example, a mining company operating on what has been assumed to be vacant crown land will be able to seek a determination whether native title exists. Normal compulsory acquisition procedures, including a right to compensation, will apply to native title land. This means that governments can acquire land from native titleholders, just as they can from other land-holders, for public purposes such as infrastructure development. The integrity of the land management system will thus be maintained. But we insist this be achieved in a way which respects the profound Aboriginal connection to the land and provides appropriate protections.

  The bill explicitly recognises that native titleholders may choose to surrender inalienable native title on terms acceptable to them, for example to exchange it for a statutory title. For example, native titleholders may wish to lease their land for a tourism or other commercial venture. The bill recognises further that there may be cases where regional negotiation is the most efficient way to avoid or resolve conflicts over land use for large areas. Where we judge this to be a promising approach, the Commonwealth is prepared to facilitate such negotiation.

Access to Tribunal and Court Processes

  Much of the bill concerns detailed arrangements to establish a national native title tribunal and to develop a capacity in the Federal Court to determine native title and compensation claims. The tribunal will conciliate and determine proposed uses of native title land where there are no recognised state or territory bodies. The bill sets out criteria for Commonwealth recognition of state bodies. However, beyond this, the government takes the view that a right cannot be said fully to exist unless people are empowered to pursue it. This is especially true for Aboriginal people, who are, as a group, the most disadvantaged Australians. Claimants for native title will need assistance to pursue their claims.

  We will therefore, under the bill, determine representative Aboriginal and Torres Strait Islander organisations to assist claimants. They will not have a monopoly on representing native title claimants: individual claimants or groups of claimants can go elsewhere if they wish.

  Representative organisations will also assist in coordinating claims: it is important that claims come forward in a sensible, organised way. They will also be a channel for notification of proposed actions affecting native title as provided for in the bill. The organisations will, of course, be fully accountable for any funds provided.

  Where third parties are engaged in litigation involving native title, the Attorney-General will have a capacity to provide funding for legal assistance, should he consider it appropriate. The government will be consulting key stakeholders—such as Aboriginal representatives and the NFF in establishing the guidelines that the Attorney-General will rely on in taking decisions.

Industry Interests

  Industry gains a very great deal from this bill because it imposes clear, statutory rules for land use where the Mabo decision left uncertainty. The bill does not lock land away. On the contrary, as I have explained, we are not setting up complicated barriers to mining exploration or operations. Where state processes, for example mining warden's courts, are suitably supplemented to take sensitive account of native title interests and are recognised by the Commonwealth, they—not the Commonwealth tribunal—will make decisions on mining applications. In our negotiations with the states some constructive proposals have already been made in this regard, which are acceptable in principle to the government. Moreover, there is specific provision for matters decided at the exploration stage not to be re-opened when mining is being considered. Protections in state and territory laws against over-bidding by another company remain and existing mining operations will not face additional conditions or costs, for example for land rehabilitation, because of native title.

  The bill will ensure the validity of legislative regimes governing economic activities offshore—those relating to commercial fisheries and petroleum extraction operations being of particular note. However, recognising the different circumstances applying offshore, while any future grants or interests will have to be issued in a non-discriminatory manner, they will not be subject to the freehold test or to the associated negotiation and arbitration procedures. In general, the bill provides that governments can confirm any existing ownership of natural resources, including forests and minerals. But any future acquisition of natural resources from native titleholders must—properly—be on a non-discriminatory basis.

  The bill provides that Aboriginal people who own or acquire a pastoral lease, and who also would satisfy native title criteria but for the prior extinguishment of their rights, may choose to claim native title. This is no back door: to get native title, the same criterion of continuing connection with the land will need to be satisfied and the bill provides that the pastoral lease may be maintained, so that the land need not be lost to pastoral use. The government remains totally committed to a strong, viable pastoral industry and to Aboriginal people's participation in it. This bill therefore offers clear provisions for dealings in native title land and certainty to our great resource-based industries.

Application of Laws to Native Title

  The bill provides that laws and regulations applying generally in the community also apply to native title land provided they are consistent with this bill. This covers such matters as heritage protection, environmental and health controls and fishery regulation. Native title land is thus kept fully within the reach of Australian law. The bill allows existing access to beaches, waterways and other recreation areas to be confirmed.

  Many specific laws affecting use and management of land are likely to need review to take account of native title. For example, the Commonwealth will, over the next two years, review our laws to better recognise native title hunting, fishing and gathering rights. We will be asking the states and territories to do the same. I note too that the bill does not affect rights under Commonwealth land rights legislation. We will be looking at a range of Commonwealth legislation, including Commonwealth land rights laws, in light of the native title regime.


  In the interests of fairness for existing grant holders, where compensation is owed to native titleholders for validation of past grants, it will be government, not the grant holder, who pays. We recognise that the Commonwealth should make a proper contribution towards compensation costs. We will have further discussions with the states and territories willing to join with us in this national approach, as well as on cost sharing for the legal and administrative regime.

  Just terms will be payable for extinguishment of native title. We take the view that any special attachment to the land will be taken into account in determining just terms. Compensation for impairment, for instance for surface disturbance caused by mining, will be on the basis of existing State and Territory regimes.

  Importantly, the bill makes provision that compensation may be non-monetary, for example, the granting to native titleholders of alternative land. It permits such issues to be raised in compensation negotiations, including where existing grants have been validated.

Land Acquisition

  The government has always recognised that despite its historic significance, the Mabo decision gives little more than a sense of justice to those Aboriginal communities whose native title has been extinguished or lost without consultation, negotiation or compensation. Their dispossession has been total, their loss has been complete. The government shares the view of ATSIC, Aboriginal organisations and the Council for Aboriginal Reconciliation, that justice, equality and fairness demand that the social and economic needs of these communities must be addressed as an essential step towards reconciliation.

  While these communities remain dispossessed of land, their economic marginalisation and their sense of injury continues. As a first step, we are establishing a land fund. It will enable indigenous people to acquire land and to manage and maintain it in a sustainable way in order to provide economic, social and cultural benefits for future generations. Addressing dispossession is essential but will not be enough to overcome the legacy of the past and achieve reconciliation.

  In a further stage, we will, in consultation and negotiation with ATSIC and Aboriginal and Torres Strait Islander organisations, look at ways to increase the participation of Aboriginal people in Australian economic life and to safeguard and develop Aboriginal and Torres Strait Islander culture. We will invite ATSIC and the Council for Aboriginal Reconciliation, in consultation with Aboriginal and Torres Strait Islander organisations, to develop proposals and to provide formal advice following the important National Reconciliation Convention to be held in October 1994. What I will be looking for is constructive, realistic proposals, which will develop a positive community consensus and contribute to a lasting reconciliation.


  The government will establish a task force of officials within my department to oversee the practical implementation of this legislation. We are also providing the necessary funding this financial year for the task force to carry out its work.

  No-one should doubt our willingness to commit the effort and resources to make the scheme work, and work efficiently. If the bill is approved by parliament, by 1 January 1994 most major aspects of the future regime will come into force. Aspects which depend on the establishment of new institutions will come into effect as soon as possible on a date to be prescribed.


  The land management challenges posed by Mabo are hugely important and they are comprehensively dealt with in the bill. But let me conclude, as I started, on the wider significance of the Mabo case. For today, as a nation, we take a major step towards a new and better relationship between Aboriginal and non-Aboriginal Australians. We give the indigenous people of Australia, at last, the standing they are owed as the original occupants of this continent, the standing they are owed as seminal contributors to our national life and culture: as workers, soldiers, explorers, artists, sportsmen and women—as a defining element in the character of this nation—and the standing they are owed as victims of grave injustices, as people who have survived the loss of their land and the shattering of their culture.

  Who can say that we would have survived these experiences as well as they have? Today we offer a modicum of justice to indigenous Australians because we have reached an understanding of their experience—and our responsibility. Today we move that much closer to a united Australia which respects this land of ours, values the Aboriginal and Torres Strait Islander heritage and provides justice and equality for all.

  Already, in the process of developing the bill, we have learned a great deal about each other and how to work together. We have extended the frontier of our mutual understanding. Perhaps the most outstanding, but by no means the only, example of this has been the participation of representatives of the combined Aboriginal and Torres Strait Islander Organisation Working Party in the unprecedented negotiations leading to this legislation.

  In hailing what she termed `a remarkable settlement and historic agreement', Lois O'Donoghue, the Chairperson of ATSIC, said, and I quote, `indigenous affairs will never be the same again in our nation'. It is for that reason, above all, that I commend this bill to the House. I present the explanatory memorandum.

  Debate (on motion by Dr Hewson) adjourned.