Aboriginal Law Bulletin
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by Graeme Neate
On 8 December 1983, the final sitting day before the House of Representatives rose for the summer recess, the Minister for Aboriginal Affairs, Mr Holding, moved a motion which seeks to provide the Parliament and the nation with a set of principles which will guide the attitudes of the majority of Australians to Aboriginal Australians and of them to us ... (and) will provide the foundations for policies that governments can apply in the future. (Hansard, p 3486)
The full text of the motion is set out at the end of this article. It recites aspects of the history of the European colonisation of Australia and the consequences of it for Aboriginals and identifies 1988 as "an immediate focus point towards which all Australians can work together to achieve the objects set out in it." The motion identifies "special measures which must be taken" in a number of areas including land rights; programs designed to ensure equality of opportunity for Aboriginals in health, education, housing, employment and welfare; programs to enable Aboriginals to take part in economic activities for their own advantage; the promotion and protection of Aboriginal identity; restoration of the rights of Aboriginal families to raise and protect their own children by means of uniform laws and procedures in respect of child custody, fostering and adopting; respect for, and in appropriate circumstances, the application of Aboriginal customary law and related practices as part of the law of Australia; and the development of improved community relations between Aboriginal and non-Aboriginal Australians.
The Hansard report for 8 December includes the text of the motion (pp 3485-3486), the Minister's speech (pp 3486-3494) and the speech in reply by the opposition spokesman for Aboriginal Affairs, Mr Porter (pp 3494-3497).
Although the Minister's speech touched on numerous matters of importance to Aboriginals, this article will be confined to those related to land rights.
The Minister commenced by referring to a history of inter-racial relationships which "has often been ignoble." He suggested that the bicentennial year provides "a focus for us to think seriously about our national beginning" and "an opportunity for this Parliament and our people not merely to contemplate our achievements as a nation but also to come to terms with our own history."
As the motion before the House records, Australia was unique in that no contract between the colonisers and the colonised was ever negotiated. In other countries, the indigenous people were offered some kind of deal. Although the consideration was often derisory, those deals at least proceeded on the basis that the indigenous inhabitants were the original owners of the land. No such recognition was accorded to the Aboriginal people. The legal doctrine of "terra nulllus" was applied on the presumption that the Aboriginal people were not people at all; that their presence in Australia was of no more significance than the flora and fauna. We can no longer live with such a: naive and arrogant concept of our beginnings as a nation and the prior ownership of Australia by the Aboriginal and Torres Strait Islander people must be acknowledged by this Parmiament and understood by all Australians. As the well-known Australian author, Xavier Herbert, so aptly said:
Until we give back to the black man just a bit of the land that was his and give it back without provisos, without strings to snatch it back, without anything but complete generosity of spirit in concession for the evil we have done him - until we do that, we shall remain what we have always been so far, a people without integrity; not a nation but a community of thieves.
Earlier in his speech the Minister suggested that:
"This generation of non-Aboriginal Australians may ask why they should be the ones to right the wrongs of our forbears. The answer is that, until this great issues is settled, and these legacies of the past are redressed, Australians- all of us - can never be truly free, never live in harmony and with a sense of equality. (p 3489)
The minister stated clearly that, in his view, sovereignty is not in issue.
I have made it clear to Aboriginal people that neither the grant of land rights, nor the recognition of Aboriginal prior occupation and ownership, in any way puts Australian sovereignty in question. Given the opportunity, Aboriginal people will make their own future as citizens of the Australian nation, as we all shall. Sovereignty is vested in the Crown and Parliaments, for a single people united in the Commonwealth. The people., who are so united under the Crown are all Australians. These matters are not in question. (p 3489)
The Minister stressed that the Commonwealth has constitutional power to take action for the benefit of Aboriginals, and he made it clear that the Commonwealth is willing to act irrespective of the attitude of State Governments.
The overwhelming vote for the 1967 Referendum means this Parliament has the power and the responsibility to make laws which will enable Aboriginal and non-Aboriginal Australians to come to terms with each other. This Government accepts that duty. In some conservative quarters we hear talk of State rights. The States' legislative powers in this area passed to the Commonwealth 16 years ago. Any doubts were dispelled by the High Court in the Koowarta and Dams cases. Human Rights are more important than State rights.
We seek a co-operative effort, with governments, churches, trade unions, the professions and business all making their special contributions. We especially want to work with each State and Territory government. Many of the Governments have achieved, or are achieving significant advances for Aboriginal people. The Commonwealth will be among the first to applaud those efforts. But no one should be in any doubt. Although this is a Government of national reconciliation and although we shall seek harmony in our relations with the States, the demands of Aboriginal people for justice will no longer be denied. We - and they - can no longer accept the assimilationist paternalism which passes for Aboriginal welfare in some parts of Australia. The time has come when Aboriginal people can stand on their own feet, and take their rightful place in this nation. I repeat: the human rights of Aboriginal and Islander Australians must take precedence over State rights.
The international community expects no less of us. Indeed, we cannot aspire to leadership amongst the newly-emerging nations of the Pacific while Torres Strait Islanders and Aboriginal people live in conditions more characteristic of a colonial regime. (p 3493)
In the Minister's opinion,
To restore to Aboriginal people a proper form of land rights throughout Australia is not only possible but a nerecsity. In fact, it is the solemn duty of this Parliament. It is, of course, not so hard to make this restoration where the white frontier has not entirely overtaken the Aboriginal people. It is not so easy but by no means impossible to act in areas where the white frontier has overrun them.
He outlined the basic principles on which national land rights proposals will be developed. They are:
(i) Aboriginal land to be held under inalienable freehold title;
(ii) protection of Aboriginal sites;
(iii) Aboriginal control in relation to mining on Aboriginal land;
(iv) access to mining royalty equivalents;
(v) compensation for lost land to be negotiated.
He went on to explain the process by which the principles are to become embodied in Commonwealth law.
This Government therefore looks to achieve further progress for the Aboriginal and Torres Strait Islander people through the two principles of consultation and selfdetermination, that is, with the involvement of the Aboriginal people in the whole process. Acting on this principle, we have enlarged the resources available to the National Aboriginal Conference and given it the means to speak to the Government as the national voice of Aboriginal interest. We have supported a range of other bodies with specialist roles in Aboriginal interests. We have supported a range of other bodies with specialist roles in Aboriginal land rights, health, education, broadcasting, child care and adoption, legal aid, art and culture. All our policies, each of our programs and projects, have been and will continue to be fashioned in discussions with Aboriginal people and their organizations at national and community levels.
.. On the great issues of policy, I expect the NAC to advise me and I expect to be guided by that advice in the action I take or recommend to the Government. (p 3487)
With respect to land rights issues the Minister noted that he has
already established a group of legal advisers. instructed by the NAC and land councils. They are now preparing draft legislation for consideration by the NAC. It is not my intention to bring a package of national land rights legislation to this Parliament without the approval of the NAC and the support of Aboriginal people. As a separate exercise, and ahead of national land rights legislation, the same group is working on a law to protect sacred sites and objects throughout Australia. This work has the highest priority for Aboriginal people. We should note the significance of this, for a people still suffering significant material deprivation. (p 3487)
The Panel of Lawyers, established in September 1983, originally comprised two lawyers nominated by the NAC, two lawyers associated with land councils (and nominated by the National Federation of Land Councils) and a Queen's Counsel appointed by the Minister with an independent brief, the Minister's Senior Private Secretary and a lawyer from the Department of Aboriginal Affairs. In recent months lawyers representing the Northern Land Council and National Aboriginal and Islander Legal Services Secretariat have been added to the panel. From time to time there have been changes in personnel.
The Panel met in Melbourne on 16 September, 24-26 October, 23-25 November and 5-15 December 1983. It prepared a set of questions raising basic issues to be covered in national land rights legislation, a detailed discussion paper on proposals for the protection of Aboriginal sites of significance and other aspects of Aboriginal heritage, detailed proposals for Aboriginal and Islander heritage protection legislation, and a discussion paper on options for national land rights legislation.
All this material has been referred for comment and instructions to a Steering Committeed chaired by the Minister and comprising 15 Aboriginals:
| • | Northern Land Council |
| • | Central Land Council |
| • | Pitjantjatjara Land Council |
| • | Kimberley Land Council |
| • | North Queensland Land Council |
The Steering Committee met in Canberra on 14 October, 11 November and 19-20 December 1983. Its members are considering the discussion paper on national Aboriginal land rights and consulting with Aboriginal communities about it. The Committee will reconvene late in February 1984 to give instructions to the lawyers. The Committee has already considered, commented on and suggested changes to proposals for Aboriginal heritage protection legislation.
Meetings of the Steering Committee to date have been relatively brief. The Minister has agreed to some of the lawyers attending Committee meetings to explain documents prepared by the Panel, to represent their clients' interests and to assist the Committee in giving adequate informed consideration to the issues.
A tentative timetable for meetings of the Panel of Lawyers and the Steering Committeed has been drawn up for early 1984.
The opposition spokesman on Aboriginal Affairs, Mr Porter, responded generally to the Minister's speech, but was granted leave to continue his remarks when debate on this motion is resumed this year.
He raised a number of questions with respect to the five principles on which the land rights package is to be based (see page 3497). He asked:
Are they based on the needs and aspirations identified by the Aboriginal people or are they policical principles raised by the Australian Labor Party to be imposed on the Aboriginal people? Is uniformity a simplistic blanket solution which will serve only as a monument to the Federal Government's centralist philosophy or is it a genuine attempt to find solutions to the individual problems facing Aboriginal communities in each State? (p 3495)
He expressed "grave doubts" that the principles and the means by which they are to be converted into legislation meet the real aspirations of the Aboriginal people. He said that there is "Widespread concern about the representative nature of the steering committee ... " and asked whether "the timetable which the Minister has set for the implementation of this ALP policy is ... one which satisfies the Aboriginal people?"
With respect to the implications of the proposals for Commonwealth/State relations, Mr Porter noted that debate continues about the effect of the New South Wales legislation, further land rights legislation is proposed for South Australia, reviews and inquiries are taking place in Victoria, Western Australia and the Northern Territory. He asked whether it is in
the best interests of the Aboriginal people ... to become involved in a Commonwealth- State conflict at a time when four States they are fully involved at the State level in negotiations and reviews of inquiries aimed at meeting at least some of the land rights aspirations of their own individual communities. (p 3496)
Mr Porter pointed out that the needs of Aboriginal communities differ from State to State and criticised what he described as the Minister's "uniform land rights legislation, which will be superimposed on the States." He argued that if State ALP governments were not implementing legislation which fully accords with the Federal Government's five principles, it may indicate that "such policy is not in accord with the solutions being developed at a grass roots level." In his view The Minister's proposed panacea has raised unreal expectations, and I am concerned that the balloon of optimism will be deflated as Commonwealth-State tensions increase. (p 3496)
Whether the criticisms, general and specific, prove to be justified will be determined as the Government moves closer to giving legislative effect to the Principles.
Meetings of Aboriginals are being held to consider discussion papers prepared by the lawyers. Instructions from those Aboriginals will be translated into proposals for legislation. As that legislation takes shape Aboriginal and non-Aboriginal Australians will be able to gauge how far it goes towards making reparation, as the Minister hopes,
not in the sense of giving it and taking it back, but giving it with a sense of generosity; of compassion, and with a proper understanding that the beginnings of this nation, as we know it today, were among the most brutal and genocidal in history: (and according) Aboriginal people ... the dignity and quality which is theirs. (p 3494)
That this House,
Noting that, in 1967, an overwhelming majority of the people of Australia voted to amend the Constitution so that this Parliament would have the power to legislate for the peace, order and good government of the Commonwealth with respect to the people of any race for whom it was deemed necessary to make special laws;
Noting also that the change to the Constitution was made to enable the national Parliament to discharge a national responsibility to the Aboriginal and Torres Strait Islander people of Australia; and
Bearing in mind that the Senate unanimously adopted the following resolution on 20 February 1975:
"That the Senate accepts the fact that the indigenous people of Australia, now known as Aborigines and Torres Strait Islanders, were in possession of. this entire nation prior to the 1788 First Fleet landing at Botany Bay, urges the Australian Government to admit prior ownership by the said indigenous people, and introduce legislation to compensate the people now known as Aborigines and Torres Strait Islanders for the dispossession of their land;"
(1) Acknowledges that(a) the peoples whose descendants are now known as the Aboriginal and Torres Strait Islander people of Australia were the prior occupiers and original owners of Australia for many thousands of years in accordance with an Aboriginal system of laws which determined the relationship of Aboriginal responsibility for and to the land to which they belonged;
(b) from the time of arrival of representatives of King George Ill of England, and subsequent conquest of the land and the subjugation of the Aboriginal people, no settlement was concluded between those representatives and the Aboriginal and Torres Strait Islander people;
(c) as a result of the colonization of the land by Great Britain the rights of the original owners and prior occupiers j were totally disregarded;
(d) since the arrival of European settlers in Australia, the original inhabitants have been dispersed and dispossessed with the result that their descendants are, as a group, the most disadvantaged in Australian society
(e) this disadvantage persists, despite measures taken by State, Territory and Australian Governments, and by Aboriginal and Torres Strait Islander people themselves, so that further measures by Australian society as a whole, and by the Parliament of the Commonwealth in particular, will be required to ensure real equality and advancement for the Aboriginal and Torres Strait Islander people.
(2) Considers, therefore, that the special measures which must be taken include action in the following main areas:(a) the development of effective proresses of consultation – with Aboriginal people in order that the Aboriginal people may assert control of all aspects of. their lives, having regard to the National Aboriginal Conference's responsibility to represent and present the views of Aboriginal and Islander people throughout Australia;
(b) the recognition by this Parliament of Aboriginal and Torres Strait Islander people's rights to land, in accordance with the following five basic principles:
(i) Aboriginal land to be held under inalienable freehold title;
(ii) protection of Aboriginal sites;
(iii) Aboriginal control in relation to mining on Aboriginal land;
(iv) access to mining royalty equivalents; and
(v) compensation for lost land to be negotiated.
(c) the continuation and acceleration of programs designed to ensure Aboriginal equality of opportunity in fields including health, education, housing, employment and welfare;
(d) the development. of programs by all appropriate means to enable Aboriginal people to take part in economic activities for their own advantage;
(e) the promotion and protection of Aboriginal cultural identity, in ways considered appropriate by Aboriginals, including measures designed to;
(i) Codify in writing Aboriginal languages, and assist in recording oral history;
(ii) preserve and protect Aboriginal sites and objects;
(iii) restore to Aboriginal people sacred objects relevant to their history, tradition and culture;
(iv) enhance the development of traditional or contemporary art forms; and
(v) provide interpreter services.
(f) restoration of the rights of Aboriginal families to raise and protect their own children by means of uniform laws and procedures in respect of child custody, fostering and adopting;
(g) respect for, and in appropriate circumstances, the application of, Aboriginal customary law and related practices as part of the law of Australia; and
(h) the development of improved community relations between Aboriginal and non-Aboriginal Australians, which requires a growing understanding on both sides by means of:
(i) public education programs; and
(ii) fostering the study of Aboriginal history, language, anthropology and archaelogy in Australian schools and institutions of learning.
(3) It is therefore of the view that(a) the Australian people will be truly free and united only when the Aboriginal and Torres Strait Islander people of this nation are free of the distress, the poverty and the alienation that has been their lot; and
(b) the Bicentennial year of 1988 provides an immediate focus point towards which all Australians can work together to achieve the objectives set out in this resolution.
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