By Peter Boyle
A cacophony of outrageous racist statements by the likes of Northern Territory Chief Minister Marshall Perron (Aborigines are "backward", sleep with dogs and share their germs, he says) and Western Mining director Hugh Morgan (Aborigines deserved to be dispossessed because they were culturally inferior to Europeans) is being used to obscure the real political issues raised by the High Court's 1992 Mabo decision. Considerations of justice for Aboriginal people have been tossed aside.
The court in the Mabo case demolished the racist myth that Australia was terra nullius (an empty land) at the time of European colonisation. But it did little to redress the wrongs done to the indigenous peoples of this continent.
Barbara Hocking, one of the barristers involved in preparing the case for Eddie Mabo and other Murray Islanders, points out that the Mabo decision extends legal rights to land to only a small group of Aborigines.
The great majority of Aborigines dispossessed by force and by law over the last 205 years have been given no rights to land by this decision. Those claims, which have moral but no legal force, Hocking said, had to be addressed through the political process.
The Mabo decision was a symbolic victory for Aborigines, but any real justice would have to come from political initiatives sparked off by the decision. The federal Labor government had a responsibility to determine:
1. Where "native title" had survived, and how this was to be determined (through expensive litigation or through a special tribunal).
2. What compensation had to be paid, by whom and to whom, because of duties arising since the passage of the Racial Discrimination Act in 1975.
3. What to do about the majority of Aborigines whose "native title" was considered by the court to
have been extinguished.
But no sooner had the discussions begun (more than six months after the court's decision) than the public debate began to be skewed by demands from the powerful mining industry. The mining companies insisted that the real priority was to confirm their land rights, remove any duty to compensate Aborigines under the Racial Discrimination Act and, if possible, to reverse the Mabo decision.
Western Mining chairperson Sir Arvi Parbo, in an intervention incredibly described as "more reasoned" in some media reports, demanded a referendum on whether native title should be recognised. Such title has long been recognised in the United States, Canada and New Zealand and even by the International Court of Justice.
While the federal government has condemned the most outrageous statements by the mining lobby, in practice it is preparing post-Mabo legislation to entrench mining company rights.
The first evidence of this was its support for NT legislation immunising the giant McArthur River lead-zinc-silver mine from native title claims. Second, from what has been leaked of preliminary drafts of federal legislation to deal with Mabo, it is clear that the Keating government seeks to entrench a minimalist interpretation of native title.
The latest indication of the federal government's direction is a 17-page drafting instruction leaked to the Queensland opposition. This document proposed:
- The establishment of a national native title tribunal to determine surviving native title as narrowly defined by the High Court in Mabo.
- Some protection for what native title legally survives from future grants of interests like mining and pastoral leases. This involves the idea of temporary extinguishment and later revival of such titles and serves as a protection and validation of temporary mining and pastoral interests.
- Some guidance as to how any
compensation due to native title holders could be calculated, but no clear direction as to who should pay it.
Federal special minister Frank Walker has said that this document is now out of date, but his implication was that the government's position had shifted further to the right.
Even the recent well-meaning intervention into the debate by several leaders of Christian, Muslim and Jewish faiths appears to have been shaped by the furious pressure from the right. Their July 9 letter to all major newspapers appealed for moderation and calm in the face of "extravagant claims and counterclaims".
Let's accept the Mabo decision and only slowly discuss moving beyond, is their cautious message. However, the federal government has both the power and duty to do something to redress the dispossession and pauperisation of Aboriginal people. It should pass national land rights legislation making land available to all Aborigines on the basis of traditional association or need. The interests of the great majority of non-Aboriginal Australians need not be threatened by such a step.
If the federal government refuses to extend land rights beyond the largely token recognition offered by the Mabo decision, campaigns by Aboriginal people for justice will undoubtedly go on in all available forums.
Editorial: page 8.