By Peter Boyle
The Keating government's June 3 release of a cabinet discussion paper on legislation to deal with the Mabo case confirmed the bad impression created a week earlier by the government's support for Northern Territory legislation which overrides Aboriginal title at the MacArthur River mining project.
The paper reveals two priorities: validation of post-1975 mining and pastoral titles which may have been invalidated by the High Court decision; an arrangement with state and territory governments to share any compensation costs that may arise as a result of Mabo.
Federal opposition leader John Hewson faulted the government only for raising the expectations of Aboriginal people. Even National Farmers Federation executive director Rick Farley said he thought it was possible to intepret the paper in a manner acceptable to the NFF. The discussion paper will go to the upcoming premiers' conference.
The basic idea is that the federal government will legislate to validate retrospectively any land interests granted by states and teritories between 1975 and June 1993, which may have contravened the Racial Discrimination Act by extinguishing native title, belatedly discovered by the High Court in the 1992 Mabo decision.
After June 30, the states will have to ensure that new titles are granted in a way that is Mabo-proof. This probably means that, in the few case where provable native title is involved, the states will have to give some compensation to the native title owners. The federal government is prepared to take responsibility for any compensation arising from its validation of 1975-1993 interests.
In earlier negotiations with Keating, Aboriginal land councils and some other Aboriginal organisations had been prepared to agree to "non-adversarial" tribunals to hear claims for native title, and to the
validation of post-1975 mining and pastoral titles. Even more controversially, some land councils had agreed in principle to legislation which put native title into temporary abeyance while mining took place on Aborignal land.
All these trade-offs were raised only in the context of a settlement package which included national legislation to recognise land claims on a broader basis than defined by Mabo. This would include claims based on "historical association or need".
There was also supposed to be provision for the protection of sacred sites and the environment and compensation for disturbance. Validation of mining leases was to be made subject to a settlement with native title holders.
All this appears to have been pushed aside, while the trade-offs have been built upon. The approach has been to contain any consequences of the Mabo decision and to legislate on the basis of a minimum intepretation of native rights. This has provoked an understandable outcry from right across the Aboriginal movement, including the government's advisory body, the Aboriginal and Torres Strait Islander Commission.
The proposed federal legislation could even serve to head off attempts to broaden, through test cases, the restrictive conditions which the High Court in Mabo imposed on native title. A minority judgment in the Mabo case recognised a stronger title, and could be a basis of such claims.