Aboriginal Law Bulletin
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by Patrick Dodson
This article introduces the process of reconciliation and describes some of the implications of the High Court's decision on native title, also known as the Mabo decision, for the process of reconciliation. It is an edited version of a booklet published by the Council called Making Things Right - Reconciliation after the High Court's Decision on Native Title.
The article describes the Council's role and raises the question of whether, in light of the High Court's decision, reconciliation might be advanced by a possible document or documents of reconciliation and whether a document would benefit the Australian community as a whole. These are matters upon which the Council will need to be informed by all sections of the public. It has no predetermined position on the nature and content of any document or documents or indeed if such an outcome will take place.
One of our Council members, a leading Aboriginal law-man in Central Australia, Mr Wenten Rubuntja once said "We have to work out a way of sharing this country, but there has to be understanding of, and respect for, our culture, our law."
His hopes for working out a way of sharing, understanding and respecting Aboriginal culture and law are shared by all of us on the Council. It is not only how we think of each other that we have to focus on, but also the quality of the human encounters we experience which -govern our actions and relationships to each other.
It seems to me that Aboriginal people, on the whole, experience the world very much with humanity and the importance of relationships uppermost in their considerations. Constantly, during the Royal Commission into Aboriginal Deaths in Custody hearings, Aboriginal people described their relationship with those in authority roles as not satisfactory, racist or inhuman. Basically, no one cared.
Stimulating motivation out of this type of social and cultural malaise, requires experiencing a win in some arena or other. In my view, it does not necessarily matter how minor to begin with. The ability of the individual to spark action and hope for change and improvement should not be under-estimated.
The Mabo decision, which is a win, gives impetus to Aboriginal and Torres Strait Islander calls for a new deal. Through the process of reconciliation, the new found rights of Aboriginal and Tones Strait Islanders give all Australians a critical opportunity to heal old sores whilst being constructive about the -nature of the future of indigenous affairs.
The Council for Aboriginal Reconciliation was established, with unanimous support of the Federal Parliament, by legislation on 2 September 1991. The Council comprises 25 members, 12 of whom are Aboriginal and two are Torres Strait Islanders.
We need to recognise that there are divisions in Australian society that only time and constructive effort will diminish. The process of reconciliation aims to reduce these divisions and suggest ways in which the relationship. between Aboriginal and Torres Strait Islander peoples and other Australians can be healed, with respect for humanity on both sides. The Council's task is to look for a way for indigenous and other Australians to share this country as equals. The Council's vision is:
... a united Australia which respects this land of ours; values the Aboriginal and Torres Strait Islander heritage and provides justice and equity for all."
The Council has initiated four programs to assist in bringing about change and education about the key issues for reconciliation:
To build bridges of understanding with various sectors the Council has established a range of committees to identify potential strategies to improve relations and to disseminate information about reconciliation issues, including the implications of the Mabo decision for reconciliation.
A Rural Committee is focussing on the pastoral industry in the Northern Territory and undertaking cooperative practical action to bring about reconciliation. A Mining Committee aims to find ways of setting up codes on conduct, resolving disputes, improving awareness in the industry of Aboriginal cultural values and promoting approaches through which the mining industry could benefit Aboriginal communities. An Industry Committee will foster cooperation between employers and employees on Aboriginal and Torres Strait Islander issues. A Consultative Committee is taking forward consultation on formal recognition of Aboriginal and Torres Strait Islander rights. A Media Committee is guiding the Council's public awareness activities and another committee evaluates implementation of the Council's programs. Each Committee will report back to the whole Council with information and advice.
The Council's Strategic Plan identifies eight key issues as crucial to reconciliation:
Aboriginal and Torres Strait Islander peoples and their supporters have used the word 'reconciliation' since at least the 1960's, as they have worked for recognition and social justice.
The final recommendation of the Royal Commission into Aboriginal Deaths in Custody was:
"... that all political leaders and parties recognise that reconciliation between the Aboriginal and non-Aboriginal communities in Australia must be achieved if community division, discord and injustice to Aboriginal people are to be avoided. To this end, the Commission recommends that political leaders use their best endeavours to ensure bi-partisan public support for the process of reconciliation and that the urgency and necessity of the process be acknowledged."
As the Royal Commission observed, the process of reconciliation will have as a principal focus the education of non-Aboriginal Australians about the cultures of Australia's indigenous peoples and the causes of division, discord and continuing injustice to Aboriginal and Torres Strait Islander peoples.
This educative process is a foundation for long term change. The Council seeks to find ways in which acknowledgment of our history can turn into a commitment for a better future.
The Royal Commission concluded:
"And in the end, perhaps together, Aboriginal and non-Aboriginal, the situation can be reached where this ancient, subtly creative Aboriginal culture exists in friendship along 'e the non-Aboriginal culture. Such an achievement would be a matter of pride not only for all Australians but for all humankind."
This situation is the Council's goal.
If it is to succeed, reconciliation must work at different levels, through all spheres of government - Federal, State and Local. - and in all communities. Reconciliation must also operate in all sectors, private and public.
It is important also to think about reconciliation in smaller, practical, localised terms and to work from there. The reference in the Council's legislation to local community action reflects this approach. The community focus is essential if reconciliation is to make a difference in the daily lives of all Australians, especially Aboriginal and Torres Strait Islander peoples.
On the third of June 1992, the High Court of Australia took a decision, known widely as the Mabo decision, to recognise that the Murray Islanders of the Torres Strait were entitled, "as against the whole world, to possession, occupation, use and enjoyment of the lands of the Murray Islands". The notion of terra nullius, Australia as an empty, unowned land, died that day. The High Court decision has implications for Australia as a whole, and not just for the Torres Strait.
The common law of Australia now recognises that Aboriginal and Torres Strait Islander rights of ownership existed before non-Aboriginal settlement, and may still exist where the connection with the land has been maintained and title has not been extinguished.
The Council for Aboriginal Reconciliation received the High Court decision in a spirit of joy and celebration. The decision should be welcomed by all sectors of society, because finally Australia has moved in its law making from what Justice Brennan described as “... a time frozen in racial discrimination.”
The decision has been welcomed by Aboriginal and Torres Strait Islander communities throughout Australia and by many who hope for a positive future for race relations in this country. Others have expressed concern about the impact of the decision for mining, pastoralism 'and certain other land use enterprises. A large section of the Aboriginal population that will not be able to meet the criteria to establish a native title right are concerned that they have received no redress for the injustices they have suffered in the last 205 years.
The High Court's decision rights a distortion in the history of Australia. On the basis of truth and justice, as a nation we now have the opportunity to set right the relationship in a way that was not possible in the beginning. From this point, the Council hopes that reconciliation will grow.
The written judgment of the High Court is long and complex, and will be talked about by Aboriginal and Torres Strait Islander peoples and others for many years to come. The following commentary on the High Court findings and its legal implications is to assist discussion. The summary indicates thinking about the decision under the headings of what we can be sure of, what is highly likely and what is possible. It does not pretend to be a definitive legal view by any means.
According to the High Court we can be sure that:
According to legal commentary, it is highly likely that:
In addition it is possible that the ways in which native title relates to other forms of land ownership, use and access will be particularly difficult to resolve.
For example:
Uncertainty about the implications of the High Court's decision may lead to tension between groups with competing interests in land. This does not have to lead to irreconcilable conflicts between Aboriginal and Torres Strait Islander peoples and miners, pastoralists, fishers or environmentalists. Potential conflicts may be resolved by setting up a process for the definition, recognition and negotiation of rights. Without any such process uncertainty will remain. Aboriginal and Torres Strait Islander peoples need to have status and presence in any consideration of Governments or developers in respect of land that they may have a Native title interest in.
There are three major tracks to certainty in the future. They are not mutually exclusive. Each has advantages and disadvantages that need to be thought through.
Further Court decisions could clarify who has native title and its extent. Experience overseas and in Australia shows that litigation is inevitable when there is unresolved conflict over rights and entitlements. Litigation is a lengthy and costly exercise. Further, court action tends to create tension between groups with competing interests in land and could have an adverse effect on the reconciliation process.
There may be Government action to define the mechanisms and functions of native title rights and location of native title.
An array of policy options, both legislative and consultative, exists. The policy, legal and practical issues are complex and require detailed consideration of a range of factors including their impact on reconciliation.
As well as recognising and giving effect to native title, it needs to be noted that there will be many Aboriginal and Torres Strait Islander peoples whose land needs are great, but whose chances of claiming title based on the High Court's decision are poor. The Royal Commission into Aboriginal Deaths in Custody recommendations on land needs address the land needs of those Aboriginal and Torres Strait Islander peoples who have lost traditional links with their land.
Aboriginal and Torres Strait Islander peoples and other parties could negotiate agreements.
Ideally, resolution of land use and ownership between Aboriginal and Torres Strait Islander peoples and representatives of the wider community would be through agreement after negotiation between informed and equal parties.
There are many options for a formal agreement on land ownership and use. Possibilities range from local documents to national laws or policies; from agreements b e t w e e n individuals to agreements between groups; and from informal arrangements to agreements enshrined in legislation or the Constitution.
Any agreement needs to strike a balance between the law developed by non-Aboriginal people in Australia since 1788 and the High Court's recognition of native title as part of the common law of Australia. In the past there has often been a reluctance to acknowledge any Aboriginal and Torres Strait Islander interests in land. Now, an acknowledgment of the rights of Aboriginal and Torres Strait Islander peoples must be built into any proposals for the use of Aboriginal and Torres Strait Islander land.
The High Court's decision, in rejecting the concept of terra nullius, has focussed attention on the possible value of some kind of formal recognition of prior and ongoing rights. This is a complex issue and will require informed debate and understanding across the nation if there is to be a true resolution of the historical injustices.
The High Court's decision has prompted many people to ask whether reconciliation would now be advanced by a formal document which confirmed Aboriginal and Torres Strait Islander rights. Those who want such a document need to consider what form such a document might take, how it could be developed, what rights might flow from it, and who might negotiate it. The options include a covenant, a declaration, a charter, a Bill of Rights, an Act of Parliament, constitutional change and a treaty. Another option is to leave things as they are, and concentrate on improving the climate of relations without any formal agreement. It is clear that change has to take place and that its theatre for action is multifaceted.
Under the Council for Aboriginal Reconciliation Act 1991 (Cth), the Council is required to seek the views on whether any document of reconciliation would benefit the Australian community as a whole. If the Council considers that there would be benefit in such a document, the Council can make recommendations to the Minister on its nature and content. It has no mandate to negotiate such a document on behalf of Aboriginal and Torres Strait Islander peoples.
It is important to remember that no document will effect a significant improvement in the relationship between indigenous and other Australians until attitudes are changed through education and community interaction. The national and local dimensions of reconciliation are equally important. This type of activity has to be undertaken in a concurrent manner with those that relate to the more complex legal or institutional questions.
The task for Council in the wake of the High Court's decision is to harness the energy of concerned Aboriginal and Torres Strait Islander peoples and other Australians to productive discussion and positive outcomes. To respond effectively to the High Court's decision, the Council will increase its effort in the program areas of Consultation and Communication.
The following three phases provide a framework for Council activity to December 1994.
Phase One: Sharing Information: The focus in 1992-93 is getting information on the key issues for reconciliation out to Aboriginal and Torres Strait Islander communities. The Council has contracted Aboriginal and Torres Strait Islander organisations to spread information on reconciliation issues in their local area, to receive views and relay them back to Council. As well as this, Council will communicate to the broader Australian society through its Communications Program.
Phase Two: Seeking Community Views: From mid-1993 to mid-1994, the Council will gather the views which flow from the Phase One activities. A national convention in June 1994 will provide an opportunity for taking stock of the progress of reconciliation.
Phase Three: National Reporting: In the second half of 1994, the Council will review progress and assess whether a document or documents would benefit the Australian community as a whole.
One of the factors holding back Aboriginal and Torres Strait Islander peoples' participation in the reconciliation process has been a perceived lack of recognition of their prior ownership of the land. The legal fiction of terra nullius has been deeply resented and has been a threshold issue to be addressed before any reconciliation could take place.
The Council's consultation activities in the Aboriginal and Torres Strait Islander community will involve preparing and circulating information, including commentaries by Aboriginal and Torres Strait Islander and other authorities, on the key issues of reconciliation and the overseas experience. The Council will circulate papers, videos and cassettes on these issues, and will use Aboriginal and Torres Strait Islander media and materials in appropriate languages. The Council will hold meetings in each ATSIC Zone. It will invite Aboriginal and Tones Strait Islander leaders to workshops at which ATSIC Regional Councils and key organisations will be invited to contribute their views.
The Council will consult with the wider community, non-Government and Government organisations, by circulating papers and promoting media coverage. It will sponsor community discussions, meetings with major national peak councils and key interest groups. The Council will also explore the implications of the High Court's decision for broader Aboriginal and Torres Strait Islander policy with key government agencies.
The views expressed - and the degree of agreement reached - will form the basis for the Council's report to Government at the end of the Councillors' first term of office.
You can be involved in the reconciliation process by:
At its core, reconciliation is about the wider community acknowledging that Aboriginal and Torres Strait Islander peoples have not had a say in the constitutional framework of this country and the impact that this has had on land rights, cultural protection, language, funding and a range of related issues.
In the past the wider community expected Aboriginal people to change their ways. Now Aboriginal and Torres Strait Islander peoples are asking other Australians to change the racist basis of our society, to be open to debate and to work towards a basis of equality and mutual respect for all. We must collectively work towards resolution of the issues raised by the Mabo decision so that the new found rights for Aboriginal and Torres Strait Islander peoples are made a source of unity and not division in the community. It is essential for the process of reconciliation that this occurs.
We must collectively think of ways of involving our families, friends and acquaintances in reconciliation for it is only by making large numbers of people committed to the process of reconciliation at an individual level that change is likely to occur.
Reconciliation is not something that can ever be forced from the top, it is up to all of us to make it work.
For further information on reconciliation write to:
The Council for Aboriginal Reconciliation
Locked Bag 14
Queen Victoria Terrace PARKES ACT 2600
Or phone the Aboriginal Reconciliation Unit, toll free, on (008) 807071 during business hours.
Patrick Dodson is the Chairperson of the Council for Aboriginal Reconciliation.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/10.html