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Brennan SJ, Frank --- "Reconciliation in the Post-Mabo Era" [1993] AboriginalLawB 13; (1993) 3(61) Aboriginal Law Bulletin 18


Reconciliation in the Post-Mabo Era

by Frank Brennan SJ

Celebrating its fifth election win, the ALP Government and its supporters celebrated over an elaborate dinner in the Great Hall, Parliament House Canberra on 22 March 1993. Prime Minister Keating put his personal imprint on the Government's mandate and plans, stressing the need for Australia "to create in its own image", becoming a republic within the Asian region. The night's entertainment was provided by Yothu Yindu led by Australian of the Year, Mr Mandawuy Yunupingu. Federal Cabinet Ministers danced to the music of 'Treaty' and the first public performance of 'Mabo'.

The return of the Keating Government will have major ramifications for Aborigines as the Government contemplates the best way to implement Mabo principles and surveys the way for a process and instrument of reconciliation. These policy issues are of such moment that the Ministry of Aboriginal and Torres Strait Islander Affairs now comes under the direct responsibility of the Prime Minister rather than the Minister responsible for DEET.

Government realises that these issues will impact on all Australians. Advice is no longer to be received only from ATSIC.

An Office of Aboriginal and Torres Strait Islander Affairs has been set up in the Department of Prime Minister and Cabinet. Whereas Mr Robert Tickner was previously also the Minister Assisting the Prime Minister for Aboriginal Reconciliation, some of his ministerial responsibilities have been hived off to Mr Frank Walker as Special Minister of State Assisting the Prime Minister, especially the implementation of the Mabo decision. Mabo has transformed reconciliation from a politically safe and marginally Left issue to a central policy issue demanding co-ordination of responses from various interest groups and government departments. During the election campaign, the CLP Government in the Northern Territory tried an elaborate political stunt to head off Mabo developments. The Northern Territory Legislature passed the Confirmation of Titles to Land (Request) Act 1993 (NT). This extraordinary piece of legislation requested, the Commonwealth Parliament to pass laws validating land titles in the Northern Territory, whatever the effects of Mabo. Further, the Northern Territory Legislative Assembly requested that the Commonwealth Parliament not amend its own legislation in future except with the approval of the Administrator of the Northern Territory. Recognising that there may be some conflict between ongoing native title and other rights and interests in land, the Northern Territory legislature urged a return to certainty by means of extinguishing native title where any conflict occurred, without any consideration on the merits whether native title should take priority over titles granted later even if they not be for living and occupation purposes.

The day before Federal Caucus was to meet to ratify the Keating Ministry, the major Australian industry groups issued a press statement calling upon the Commonwealth Government to follow the lead of the Northern Territory Legislature. This old style approach to reconciling differences is premised on the notion that whenever there be a conflict of interests or rights between Aborigines and other groups, Aboriginal interests should be secondary and lose out.

Since Mabo, this approach is legally as well as politically untenable. The extinguishment of native title is now permitted only on the same terms and conditions on which government might extinguish the title of other persons.

This normally will require consultation, negotiation, compensation, and rights to review whether the proposed acquisition is in the public interest and is fair and reasonable. Anything less would be racially discriminatory and a breach of the Racial Discrimination Act 1975 (Cth).

During the Western Australian election campaign there was considerable agitation by mining and other industry groups for amendment of this Act. The agitation followed upon the unsuccessful bid by Mr Hugh Morgan of Western Mining Corporation who sought immediate amendment of the Racial Discrimination Act after the High Court decision in Mabo.

Prior to the High Court decision, it was only in the interests of Aborigines and their supporters that there be a statutory system of Aboriginal land claims with a tribunal process. Since Mabo, it is in the interest of all miners and pastoralists seeking certainty and security that there be an efficient and fair system of Aboriginal land claim registration and determination. Former Liberal Attorney General, Senator Peter Durack QC has observed:

"It seems inevitable that there will be renewed calls for a national solution which itself will be divisive. Now that the High Court has recognised the existence of such a title at Common Law, the current state by state approaches will be harder to justify. The Commonwealth Parliament will be asked to ensure that there is at least a common workable standard. Those who believe the new title is too weak, and those who want to abolish or restrict it, will have a common interest to promote a national, solution."[1]

The mining industry has been concerned since the Mabo decision that some mining tenements obtained after the passage of the Racial Discrimination Act might not only found actions for compensation payable to traditional title holders but that such tenements may be invalid. This view is supported by some legal advice obtained by mining companies. However none of the advice had been published or made subject to further scrutiny. The mining industry is adamant that there is an immediate need to render certain all existing mining interests and to expedite the grant of further interests, accommodating native title holders with minimal disruption to existing mining regimes. The resolution of these issues provides the first opportunity for a Keating Government elected in its own rights to put its stamp on the recognition of Aboriginal claims and the reconciliation of conflicting rights and aspirations.

In Canada, native peoples have recourse to the Charter of Rights which recognises and maintains existing Aboriginal treaty and land rights. In New Zealand, Maori objected to the Treaty of Waitangi being incorporated in the Bill of Rights. Whereas in Canada the indigenous groups agitated to have their collective special rights incorporated in the foundational statement of national rights, Maori objected on the basis that the Treaty of Waitangi was not a creature of the New Zealand Parliament but rather a solemn agreement which is superior to any statute.

In Australia there is ongoing commitment from various quarters to a Bill of Rights. At the Constitutional Centenary Conference in 1991, Chief Justice Murray Gleeson of New South Wales gave support to the notion of a Bill of Rights. This followed upon similar support having been tentatively granted to the proposal by Sir Anthony Mason, Chief Justice of the High Court. Opening a, recent seminar on Resource Development and Aboriginal Land Rights in Australia, Chief Justice David Malcolm of Western Australia said,

"Chief Justice Gleeson attracted considerable attention by his support for the inclusion of basic democratic or human rights in the Commonwealth Constitution. This view was strongly supported by the Conference, although there was a difference of view on the extent of the rights to be incorporated.[2]"

The Constitutional Centenary Conference identified three key issues in Aboriginal Affairs to be pursued in conjunction with review of the Constitution in the lead up to 2001:

Opening the International Year for the World's Indigenous Peoples, Prime Minister Paul Keating gave a strong and passionate speech in Redfern Park (see this issue p.4) about Aboriginal rights and aspirations especially in the light of the Mabo decision.

However in his more routine public addresses, especially during the recent election campaign, he failed to qualify his usual rhetoric of 'One Nation' in social and economic terms, giving passionate expression to this commitment of inclusion of all Australians in the one society, without persons or groups being divided or discriminated against. While a government commitment should avoid adverse discrimination, it will not of itself provide the basis for recognition of distinctive, collective indigenous rights. While seeking participation, Aborigines rightly seek it on their terms. While seeking equitable access to resources and opportunities, Aboriginal and Islander groups rightly seek some recognition of past dispossession and abuses requiring ongoing compensation and restitution.

The reconciliation process is concerned with effecting attitudinal change in the Australian community about these aspirations and also with addressing questions of Aboriginal disadvantage. But these are only two of the aims. Or they ought be. The formal recognition of indigenous collective rights has been effected by a treaty or agreement between separate peoples as with the Treaty of Waitangi 1840.

I believe it is 200 years too late for this in Australia as there are no longer two separate contracting parties; there is not an Aboriginal nation; the many hundreds of 'Aboriginal nations' are so diverse and disparate that consultation, negotiation and treaty arrangements would simply be unworkable.

Within the Australian nation state, the highest legal instrument rendering the greatest certainty and security for rights is the Constitution. Given that there will be a major review of the Constitution prior to the first Centenary of Federation, it is essential that the possibility of the entrenchment of Aboriginal rights in a revised Constitution be kept open. If such a possibility is to be entertained for 8 years time, it is essential that there be a mechanism for the discussion of such rights and for winning the necessary support for amendment of the Constitution. No amendment of the Constitution will be possible without the consent of the majority of the Australian population. Bitter experience has proved that the majority will not trust government proposals for referenda unless they have been guaranteed support of the proposals by all major political parties. If there were to be any chance of all major political parties supporting the recognition of Aboriginal rights in the Constitution at some time in the future, it is essential that there be a process enjoying full support of all political parties for the discussion of such issues here and now. This is the primary justification for the Council for Aboriginal Reconciliation. Understandably many Aborigines and Torres Strait Islanders are mistrustful of the Council, regarding it as another Canberra-based talk-test. However, the chief critics have made the mistake of presuming there was a choice between a Council for Reconciliation and a treaty. Politically there was no choice. The choice now, as at the time of the establishment of the Council, is between the Council and nothing. It is far better to have a Council assured majority_ indigenous representation, with a guaranteed budget and infrastructure, equipped to agitate questions of the entrenchment of Aboriginal rights.

In the end it may prove impossible to attract the cross party support necessary for a referendum to entrench Aboriginal rights in the Constitution. Also, Aborigines and Torres Strait Islanders may themselves decide, like the Maori, that their fundamental rights and freedoms as indigenous peoples should not be granted by a domestic legal instrument even if it be the highest domestic legal instrument, namely the Constitution. If Aborigines were to make this decision, they would be foregoing the strongest possible domestic legal protection of their rights and interests. It would be irresponsible of government and foolhardy of Aboriginal groups at this stage to foreclose the possibility of constitutional entrenchment of Aboriginal rights. If such entrenchment were neither sought nor possible, the fallback position would have to be further Commonwealth and State legislation to buttress Aboriginal titles, to enhance Aboriginal self-determination within the life of the nation, and to recognise Aboriginal customary law insofar as such law continues and can be justly applicable to situations involving persons subject to such law. The main problems in the reconciliation .process and the formulation of any document will arise where there is a conflict between Aboriginal and other groups in the community - as between Aborigines and pastoralists, Aborigines and miners, Aboriginal criminals or victims and non-Aboriginal criminals or victims. The Council for Aboriginal Reconciliation with representation from the various interest groups has set up committees to discuss ways of striking the appropriate balance.

If such a balance were struck, the outstanding issue for resolution would be the conflict between individual and collective rights within an Aboriginal community. This conflict came to the fore in the High Court in Gerhardy v Brown.[3] Though upholding the validity of the Pitjantjatjara Land Rights Act 1981 (SA) as not being contrary to the Racial Discrimination Act, some of the judges sounded a warning note about the collective rights of an Aboriginal community to exclude outsiders from their lands when such lands covered 10% of the State of South Australia. Their concern centred on the individual rights of Pitjantjatjara residents who may wish outsiders to have access whatever the views of other members of the community. They also considered the isolation especially of young women within such communities who may be subject to the unreviewable whim of elders whose aspirations and view of the world may be contrary to the maintenance of individual human rights of Pitjantjatjara who are also Australian citizens entitled to the protection of their basic human rights recognised and affirmed by various international covenants and declarations.

The protection of individual human rights may require limits on community self-determination; this could really be seen as a new and more subtle form of paternalism.

Domestic violence and alcoholism are no strangers to Aboriginal communities. Their . victims require and demand protection. Traditional law and traditional community dispute mechanisms have proved unequal to the task of this protection especially in communities whose members are drawn from many cultural backgrounds and whose access to alcohol is untrammelled. In the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), Commissioner Patrick Dodson found:

“ ... that much of the content of discussions related directly to problems arising from alcohol use and how to solve them”[4]

Having said that "alcohol cannot be seen as the absolute or, indeed, the only cause of violent behaviour", Dodson conceded that alcohol can "be seen to exacerbate violent behaviour among Aboriginal people."[5] He found that in some areas violence was endemic among those who make extensive use of alcohol in circumstances which "can undermine respect for Aboriginal Law, and social relationships and practices that seek to maintain Aboriginal societies". He said:

"I can only conclude that violence has increased among Aboriginal society, both in the amount of violence inflicted, and in how and to whom, that violence is inflicted. What appears to be true, is that whereas in previous times, members of Aboriginal society often used what may be described as violence or physical force to enforce certain aspects of law and order, today physical force has, in many areas, where excess alcohol use occurs, become almost uncontrollable and mindlessly violent. This is especially so not only with regard to the violence directed towards women and children but also among men themselves."[6]

In his concluding chapter entitled 'Aboriginal Aspirations and Natural Justice', Dodson focuses on the quality of personal relations between Aborigines and law enforcement officers:

"Structures, orders, regulations and guide-lines tend not to be what produces good relationships of their own accord. They, of course, need to be designed to bring about the good of the relationship, but it is the quality of the interpersonal contact that is paramount for the Aboriginal person. People who take a meticulous statutory notion to their role and responsibilities, find their relationships with aboriginal people are often going to be perceived as insensitive and uncaring, which leads to an impaired basis for a quality relationship. Friction, conflict, fear and anger build up quickly on both sides in these types of situations."[7]

Seeking a way forward, he gives primacy to "processes and respect" over "questions of absolute principle."[8] This must be done at the regional or local level:

"When structural and organisational formats are imposed and thrust upon Aboriginal people, there is no sense of ownership developed. Such things tend to come outside Aboriginal considerations and initiatives. When there is no sense of ownership, there is no pride. For pride to be advanced, there needs to be control and sensitivity to enable delivery and participation. Without these dynamics being put in train, there will be repetition of past patterns of rejection, failure and resistance."[9]

As we review our national identity and our national institutions, the major unresolved demands of Aboriginal communities are:

The reconciliation process and any legal instruments resulting therefrom will succeed if the variety of Aboriginal viewpoints has been accommodated. For some Aborigines the maintenance and retrieval of culture are central. For others the exercise of power and the assertion of Aboriginal identity within the Australian community are paramount. If our national institutions are better adapted to recognise and respect Aboriginal culture and to empower contemporary Aborigines to run their communities and live their lives in their way, there will be some prospect of being reconciled. No society can ever put its past behind it, but, there can be times when the community, the vanquishers and vanquished, the oldest established residents and the most newly arrived migrants, can collectively own their past, embrace their future, and make a fresh start.

The first centenary of Australian Federation with a renewed commitment by a government to creating a nation in its own image provides the ideal opportunity for indigenous people to belong on their own terms within the limits of what people can agree to be fair and reasonable. This will never mean drawing the line and forgetting our past, but it could mean making a new beginning and going forward with the satisfaction of a legal regime which reflects and embodies the aspirations of contemporary indigenous Australians wanting to be included in the body politic while at times enjoying the splendid isolation of their own law, culture and traditions within their own communities. The immediate test will be the Keating Government's response to the implementation of Mabo particularly in view of the demands from industry groups for the extinguishment of native title so as to render mining interests more certain. Such certainty would be bought at too high a price. In the longer term the test will be striking the balance between individual and collective rights of those who are Aboriginal, those seeking the fullest protection of Australian and international legal processes for their rights and freedoms, while living as members of communities committed to preserving, maintaining and adapting the world's oldest living cultures. Those who advocate separate Aboriginal sovereignty, unqualified self-determination and unreviewable application of customary law would have to regard individual human rights as a post-colonial ideological construct.

The Council for Aboriginal Reconciliation deserves full support and requires adequate resourcing at this time so that the compromises to be effected between Aboriginal and other interest groups may proceed with Aborigines being guaranteed equal bargaining power and so that the compromises between individual and collective rights can be discussed by Aboriginal communities in a broader context of constitutional review.


[1] Durack, P., The Consequences of the Mabo Case, Mabo and After, Institute of Public Affairs, Perth, 1992, 1 at p.9.

[2] The Centre of Commercial and Resources Law, Resource Development and Aboriginal Land Rights in Australia, University of western Australia, 1993, p.2.

[3] [1985] HCA 11; (1985) 57 ALR 472

[4] RCIADIC Regional Report of Inquiry Into Underlying Issues in Western Australian Volume 2, p.731.

[5] Ibid., p.761.

[6] Ibid., p.763.

[7] Ibid., p.767.

[8] Ibid., p.770.

[9] Ibid.


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