Bartlett, Richard --- "Mabo - The Primacy of the Commonwealth -- The Rejection of WA and NT Legislation" [1993] AboriginalLawB 23; (1993) 3(62) Aboriginal Law Bulletin 14

• Mabo-The Primacy Of The Commonwealth – The Rejection Of Wa And Nt Legislation
• Western Australia
• Northern Territory
• Endnotes:

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Mabo -

The Primacy of the Commonwealth –
The Rejection of WA and NT Legislation

by Richard Bartlett

'The protection of the Aborigines should be considered as a duty peculiarly belonging and appropriate to the Executive Government, as administered either in this country or by the Governors of the respective colonies. This is not a trust which could conveniently be confined to the local legislatures."1

The 1837 Report of the Select Committee of the House of Commons on the Aborigines of the British Settlements reached its conclusion after an examination of all the British settlements in North America, Africa and Australasia. The Report concluded that the local Legislatures were 'unfit' to exercise jurisdiction over Aboriginal peoples and their lands. Those Legislatures represented "the feelings of the settled opinions of the great mass of the people for whom they act" and the "settlers in almost every Colony (had) either disputes to adjust with the native tribes, or claims to urge against them." The Legislature was "virtually a party, and therefore, ought not to be the judge in such controversies." The soundness of the conclusion of the 1837 Report has not been doubted and the exceptionally objectionable history of settler/Aboriginal relations in Australia can in part be attributed to the failure to pay it due heed.

On Federation in 1901, the Constitution conceded primary jurisdiction with respect to Aboriginal people outside the Territories to the States. Federation came at a time in Australia when it was thought the Aboriginal people "were a dying race whose future was unimportant.'2 A different view in a different time led to the declaration of exclusive federal jurisdiction in the United States and Canada.

Public pressure, arising from the circumstances of Aboriginal people under State jurisdiction, brought about a change in 1967. The Federal Government was given concurrent jurisdiction with that of the States to make laws with respect to Aboriginal people. But the 1967 amendment did not bar State jurisdiction. State action can only be restrained in so far as the Federal Government is prepared as a matter of political will to assume the primary role.

Today, the value of the 1837 Report is again being made evident, and at the same time the political will of the Commonwealth Government to assume the primary role is being challenged. Two local legislatures have sought to assert jurisdiction and quash Aboriginal interests in the furtherance of immediate local economic concerns. In Western Australia and the Northern Territory the legislatures have rushed to try to extinguish native title and repeal Mabo with the avowed aim of removing any threat to resource security presented by Aboriginal claims to land. Any such effort must in the long term fail, but it is to be hoped that the Commonwealth Government will follow the dictates of the 1837 Report and assume a primary role in regard to native title, so that such narrow short-term ambitions are thwarted.

Western Australia

It is to be expected that Western Australia will strongly oppose the assertion of such a federal role. It has always done so. In 1887, Governor Broome recommended that "some special arrangement should be made, when Responsible Government is granted, to ensure the protection and good treatment of the northern native population."3 He recommended that jurisdiction over Aboriginal people and their reserves should remain under Imperial control and not be transferred to the local legislature. The Legislative Council strongly opposed the suggestion, declaring:

"that no ground whatever of necessity has been shown for placing the interests of the Aboriginal population in the hands of a body independent of the local Ministry."4

The Governor's advice was followed in the Aborigines Act 1889 (WA). The statute declared that administration of Aboriginal affairs should be the responsibility of the Governor "without the advice of the Executive Council." This jurisdiction could only be amended or repealed upon the assent of the Imperial Government. At the third attempts the State of Western Australia managed to persuade Imperial Government to assent to the repeal of this denial of local jurisdiction. The so-called 'slur' on the 'humanity and decency' of the people of the State was removed upon the passage of the Aborigines Act of 1905 (WA). The only dissent in the State was the member for the East Kimberley, who questioned whether settlers could not be relieved from the depredations of Aboriginal people by the removal of the Aboriginal population to islands off the coast.

In 1993, the State of Western Australia again seeks to advance its immediate local concerns irrespective of Aboriginal interests. It proposes the enactment of the Land Management Act 1993 (WA), which will "confirm the Crown's ultimate power over all land in Western Australia, including the right to take land for lawful purposes, irrespective of any ... claimed native interest." It also proposes to validate "any Crown title previously issued, notwithstanding that it might be inconsistent with any native tide." It proposes that compensation be paid, though hopes that the amount "may not be large." The State considers that "Commonwealth legislation confirming that State legislation does not contravene the Racial Discrimination Act [1975 (Cth)] is imperative to protect the State from on-going High Court appeals against Western Australian legislative action."

In 1905, when the Imperial Government assented to allowing the State to exercise jurisdiction over Aboriginal people, it did so following prolonged state lobbying in London. Aboriginal people were not, of course, able to influence the outcome. In 1993 Aboriginal people are able to be heard in Canberra.

Northern Territory

The Northern Territory has responded to Mabo by the passage of legislation entitled the Confirmation of Titles to Land (Request) Act 1993 (NT). It requests the Commonwealth enact a scheduled Bill. Like the proposed Western Australian legislation, the Bill would validate every Crown title irrespective of native title, and seeks to limit compensation as far as possible. The Bill includes a clause 'for the purpose of resolving doubts' that the Racial Discrimination Act shall never, and shall not hereafter, be treated as having had the effect of invalidating or impairing any Crown title.

The essence of the legislation passed in the Northern Territory, and proposed in Western Australia, is the re-assertion of the paramountcy of State Crown title and interests over native title at the smallest possible financial cost. Such legislation is what one would expect from the local interests the legislatures represent. But it fails to take account of the fundamental rationale of native title at common law. Native title at common law is not founded on fairness or justice - it is founded on pragmatism and human experience. It is a compromise of the rights of settlers and Aboriginal people. It has provided a basis for on-going effective relationships in the rest of the common law world. It will do so, if allowed to do so, in Australia. Elsewhere it has provided a basis for harmonious relationships in resource development between Aboriginal people and developers. It can do so in Australia. Native title provides a long-term regime which enables the interests of all parties to be substantially met 6It puts in place a process whereby Aboriginal people can participate in the control and management of their traditional land.

The current 'scare' is that created by mining interests as to the validity of mining title granted since 1975 and therefore subject to the Racial Discrimination Act. The mining interests seem effective at securing reaction from the local legislatures they can most easily persuade to serve their interests, that is, Western Australia and the Northern Territory. But in truth the interests of the resource industry are not at stake. Throughout the common law, the existing interests of resource developers, and indeed of any other parties, have always been protected in any settlement of native title. Resource developers have secured their necessary return on investment. The Commonwealth Government has already indicated that such pattern will be respected in Australia.

It would be a grave mistake, and ultimately ineffective, to allow local interests, represented by the State of Western Australia or the Northern Territory, to override native title in order to serve short-term goals, created out of exaggerated fears as to the impact on the resource industries.

The moment requires the Commonwealth Government to exercise its jurisdiction, vested since 1967, to provide for the long-term and in the national interest. The Prime Minister has indicated that he regards the need to provide for the implications of Mabo as an 'opportunity' to implement such an approach. He so declared in Redfern in December 1992 (see AboriginalLB 61/4) and again upon his visit to New Zealand in May 1993. The minimum requirement would seem to be the need to override any State legislation that sought to extinguish native title, upon payment of a pittance in the way of compensation, and to deny any process of settlement with the native title holders.

Aboriginal groups and organizations have come together to attempt to reach a unified position to present to the Commonwealth. At meetings in Alice Springs, Canberra and Adelaide, in April and May 1993, discussions have taken place to reach an accord on principles. The first of those principles is the need for the Commonwealth Government to take a primary role in protecting and recognizing native title. Some State Governments support that approach. Premier Goss of Queensland declared:

"It is important that what is a national challenge be the subject of a national resolution and a national reconciliation".7

Premier Goss speculated that Commonwealth legislation was the likely outcome. If such legislation was enacted it might provide more effective procedures for ascertaining, and giving effect to native title, than that provided by the expensive, formal and over-long proceedings in the lower courts. The pleas of miners for 'certainty of title' would at least be balanced by the provision of certainty for native title holders. If the Mabo decision is to be treated as an 'opportunity' to belatedly reach a settlement with the Aboriginal people, then the basis of native title might properly be expanded to include claims upon the basis of 'historical association' or 'needs'. Such bases for claim would enable those Aboriginal people forcibly removed from their traditional lands and confined on other lands to bring a claim. Any legislation would hopefully also maintain the process whereby holders of native title may reach agreements and settlements for the management of their lands with the Crown. Such agreements could provide interim procedures to allow on-going exploration and development of native title lands.

Any legislation is likely to meet the resource industry's concern as to the validity of 1975-1992 titles. Such would be in accord with the practice elsewhere of protecting and giving effect to existing interests. But any such validation mechanism should, as far as possible, preserve the ability of Aboriginal people to negotiate the terms upon which validation is granted.

It is assumed in this paper that much of the historic difficulty in the relationship between the Aboriginal people ofAustralia and other Australians arises from the grant of jurisdiction over Aboriginal people to the State legislatures. The 1967 Constitutional Amendment, the passage of the Racial Discrimination Act 1975 and the Mabo decision of 1992, now make it possible for the Commonwealth Government to undo some of the harm done under State jurisdiction. A future founded on the recognition and protection of native title will at least bring Australia into line with the rest of the common law world. A first step in seizing the opportunity must be to override the legislation of Western Australia and refuse the statutory request of the Northern Territory.

Endnotes:

1. UK HC Report from the Select Committee on Aborigines (British Settlements), Irish University Press Series of British Parliament Papers, "Anthropology - Aborigines", Vol.2 at p6.

2. Sawer, G., 'The Australian Constitution and the Australian Aborigines" (196667)2 FL Rev., pp.17,18.

3. Britain Parliament Papers (UK) Vol 31 Australia 1889, "Correspondence respecting the proposed introduction of responsible government into Western Australia", p)4. Approved by Sir J. Holland, Jan.3, 1888, p36., Secretary of State for the Colonies.

4. Ibid., p.30.

5. See Johnston, Peter, 'The Repeal of Section 70 of the Western Australian Constitution Act 1889: Aborigines and Governmental Breach of Trust", (1989) 19 UWAL Rev

P318.

6. See Bartlett, R., "Mabo : Another Triumph for the Common Law" (1993) 15 Sydney Law Review - and, "Resource Development and the Extinguishment of Aboriginal Title in Canada and Australia" (1990) 20 UWAL Rev, p.453.

7. The Australian, 20 May 1993, p.3.