Justice before reconciliation
Where is the dispute over native title heading, and where does it leave the reconciliation process? Green Left Weekly spoke, separately, by phone to Les Malezer, executive director of the Foundation for Aboriginal and Islander Research Action, and Peter Yu, executive director of the Kimberley Lands Council and a member of National Indigenous Working Group.
Question: What's your response to Howard's threat to overturn, or at least stop the funding for, the implementation of the Cape York land heads of agreement?
Peter Yu: I guess in some ways it's not unexpected in terms of the pressure coming from the pastoralists from Queensland. The heads of agreement is a significant step forward in the relationship between environmentalists and pastoralists and the Aboriginal people. It's a good example of something to be emulated in other regions of the country, where there needs to be a greater attempt to define this undefined coexistence consistent with the Wik decision.
Question: Where would this leave the cooperative negotiated approach to native title rights on pastoral leases?
Les Malezer: The opportunity is still there for agreements to be worked up. The Commonwealth and state governments should be involved in certain types of agreements, and it is disappointing if the government is not going to give support where it has previously.
It is still important that agreements get worked out between the interested parties and jointly they try to convince the government that they endorse such agreements.
Peter Yu: Things are left in the lurch at the moment, because with Howard's 10-point plan, the only concession to indigenous peoples is [such] agreements. We talk about site-specific agreements in relation to resource development, environmental concerns and indigenous concerns, and we also put the proposition of regional agreements, which could be similar to what has developed in the Cape York area.
It puts us in a harder position where there is going to be an adversarial approach. The 10-point plan points to greater uncertainty, because ultimately it leads to extinguishment. So there is no option for indigenous peoples but to seek redress in the courts.
Question: Why do you think the prime minister is insisting on extinguishing native title in all but name?
Les Malezer: Quite clearly, he is reacting to pressures bought to bear from his own party and constituency — from the Nationals, the Farmers Federation, United Graziers Association and to a lesser extent the mining industry.
Out of those 10 points, at the very most only one of those points may have some benefit to Aboriginal people, but the other nine quite clearly are aimed at extinguishing rights — not only rights which were clarified by the Wik decision, but also rights that were recognised in the 1993 legislation from the Mabo decision. It's a program to limit and extinguish Aboriginal people's rights.
Peter Yu: It's ideologically driven, and that is very dangerous because fundamentally it is a race issue. While everyone has been reacting to Pauline Hanson, people have to look very closely at the government agenda.
They'll be treating our property rights different to everyone else's property rights. It opens up the question whether it breaches the Racial Discrimination Act. Furthermore, there may be High Court challenges, as it relates to the constitutional powers the Commonwealth has to make laws for a particular race. That is reflected in the forthcoming Hindmarsh Island challenge, where the government has introduced legislation enabling the building of the bridge against the wishes of the traditional owners of that area.
Question: What do you think of the threat of a referendum on native title if the changes are blocked in the Senate?
Peter Yu: That would be a tragic result. But the government would have to consider it very carefully, as it could be a double-edged sword. I do not think the referendum would go in our favour. We tend to forget there is a huge young voter population out there that are not familiar with the issues, the 1967 referendum or the indigenous aspirations of Mabo and Wik.
But on the other hand, it could quite clearly have enormous political risk both domestically and internationally for the government, because it would be a referendum on race.
Les Malezer: I do not know if Howard is actually making that threat, but it is being put to him. A referendum will have no impact on the legal situation. If it is a referendum to change the constitution and provide the government with some powers to deliberately discriminate against the interests of Aboriginal people, then they can do it. But a referendum simply to ask people's opinion does nothing.
Big money has been spent by pastoralists and multinationals to mislead the public, so a referendum after such a big program of propaganda is just a farce.
Question: Can you comment on the government's response to the report of the inquiry into stolen children?
Les Malezer: There is widespread damage today caused by the separation of Aboriginal families. People have suffered very badly; people are still suffering now as they have to recall the pain from being kept away from their families for so long. Aboriginal people have suffered irreparable damage from separation from their communities, from their culture, from their land.
Compensation should be paid to the people, and the government should look at how to do so to deal with such a policy against Aboriginal people. Also, the government will have to show sincere regret in the form of an apology to Aboriginal people and acknowledge that those policies, even if they were well intentioned in the past, were definitely wrong. It is important as part of the healing process that Aboriginal people still have to go through.
It has been disappointing from the very start that the government did not give the inquiry the support it should have got. It is no use the government trying to avoid the issues by simply rejecting the report because it has come from the Human Rights Commission.
The state and territory governments, which have to take the blame for the policies of the past because they had the constitutional powers, are the ones who have to be at the forefront of apologising and making reparations to the families.
Peter Yu: It shows the coldness and the hardness and the insensitivity of the government in understanding its responsibility to govern for all the people. It completely ignores the contemporary reality of the impact of the stolen generation period. It is hypocritical, given the Coalition support for families.
The inquiry seems not to have gone into in any detail of physical and sexual abuse. There is not one Aboriginal family, this may be across the whole nation, not affected as a result of institutionalisation. With the physical and sexual abuse, I would have thought it be more appropriate at the NSW royal commission into paedophilia.
Up to 45% of Aboriginal children in particular areas were institutionalised. That is horrendous in terms of the number of people who have been through the system and subjected to those unspeakable atrocities. We are facing the consequences today.
I agree with the commission's finding of genocide. People were taken away, they were unable to speak their language, they were taken off their country, unable to see their family, not allowed to practise their culture. It has the same result as shooting people.
We have to argue against this idea Howard is pushing of the black armband history. He fails to accept the responsibility that these things have occurred. The Aboriginal people want recognition that this did happen, and secondly for the government to acknowledge and take responsibility for it.
Question: Where does this leave reconciliation and the reconciliation conference next week?
Peter Yu: For all the hardships, there is no other option but to continue to push forward. I have faith that there is a tremendous amount of good will in the Australian community. Once they are able to get access to the facts and the arguments, people will make up their minds in the right direction.
Howard is catering for a very small, ignorant minority. While it is hard and brings an enormous amount of psychological stress to the indigenous community and others who are sympathetic to our cause, we cannot let these obstacles stand in our way.
It is also reflective of the divisive way politics is played out in this country at the moment. Obviously he hasn't given much commitment to the reconciliation process since he has been in government; in fact he has been doing his best to undermine it.
Les Malezer: Unless reconciliation starts coming out with the message that major changes have to be made to integrate Aboriginal society and mainstream society in a way that is not detrimental to Aboriginal people, then reconciliation is not possible.
Aboriginal people do not have any faith in the process. I do not want to condemn it at this stage because there are still a few things yet to happen. There is a real risk that Aboriginal people are not only going to reject reconciliation but are going to reject the way their affairs have been handled by the government, particularly since the 1967 referendum.
We are seeing in 1997 racist vilification, attacks on legal rights, attacks on Aboriginal programs to deal with social disadvantage, claims that taxpayers' money is being wasted. There is a very big challenge for reconciliation. People should not feel complacent about the failures that are going on.