By Peter Boyle
On July 26 the federal cabinet worked out new drafting instructions on a legislative response to the 1992 Mabo land rights case. This represents an attempt to come to a common position with Liberal state governments in Western Australia, Victoria and Tasmania.
Essentially the new federal position calls for a system of state and federal tribunals to interpret the "native title" found to still exist by the High Court decision. The tribunals could also allow proven native title holders the right to negotiate new mining leases (but not to veto mining) and to claim limited extra compensation from mining companies for special attachment to land. However, it also allows state and federal government veto, in the "national interest", over land use determinations by those tribunals.
Many Aboriginal organisations have yet to receive details of the new federal position, and a united response will not be formulated until after a national meeting in the Northern Territory this week.
But there was an angry reaction from Rob Riley, the executive director of the Aboriginal Legal Service of WA. Riley is part of a committee negotiating with the Keating government on behalf of Aboriginal land councils and legal services.
"As soon as politicians start talking about the national interest, Aboriginal concerns are always the loser", said Riley. By deeming that pastoral and tourism leases will extinguish native title, Keating's latest proposal interpreted the High Court's decision so that Aboriginal interests have once more been overridden by pursuit of the dollar, he said.
Giving state governments the right of veto would be "grossly unfair" in view of the fact that state premiers like WA's Richard Court refuse even to accept the Mabo decision. Court wants to hold a referendum to reverse Mabo. "Giving the state the right of veto is like asking one of the players to act as the umpire", said Riley.
In contrast, the acting chairperson of the Aboriginal and Torres Strait Islander Commission (ATSIC), Sol Bellear, welcomed the new federal position as a "major breakthrough". He was quoted in the July 29 Age in fulsome praise: "Paul Keating and his Cabinet have shown statesmanship in recognising our right to have a say in how our land is used".
The new position has been welcomed by the National Farmers Federation and ACTU president Martin Ferguson, and has been treated as a vindication of his conservative views by Victorian Premier Jeff Kennett.
However, the Australian Mining Industry Council (AMIC) is still unhappy, as is the WA premier.
AMIC executive director Lauchlan McIntosh has demanded even further concessions from the federal government, including:
- Complete extinguishment of native title by all "valid acts of government" granting land uses, including mining leases. Canberra's position allows for the revival of native title upon the expiry of mining leases, though such native title does not carry mineral rights.
- Native title owners to have only the right to receive compensation for disturbance caused by mining. Canberra proposes an extra, capped, entitlement in consideration of Aboriginal people's special attachment to the land.
- No special tribunal to determine native title, as proposed by Canberra. Any Aboriginal people wanting to prove native title would have to go through the expense of a High Court case, taking 10 years or more, if the AMIC has its way.
Aboriginal people are confused and disoriented by the mixed signals coming from Canberra, according to an urgent letter sent to the federal government on July 26 from the Aboriginal negotiating team. On one hand Keating is making grand statements about reconciliation while on the other "the strength of his words is not reflected in either the spirit or the substance of the draft", says the letter, which seeks a clarification of the federal government's position.
"Fundamentally, the drafting instructions advance and protect the vested interests of the economic, mining and pastoral sectors in particular, while doing nothing to protect Aboriginal interests beyond the bare minimum required by law", the letter said.
The proposals in the drafting instructions before the latest cabinet decision were such that Aboriginal interests would be better protected by the common law, according to the Aboriginal representatives. In fact in one area, the Victorian government's bill provides better protection than that offered by Canberra, they said.
In the face of federal and state government prevarication, Aboriginal groups are continuing to lodge Mabo-style claims before the courts. The latest claim is by the Wik people of the Cape York Peninsula. They are claiming 35,000 square kilometres of land, much of which in under mining leases held by Comalco.