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by Mark Harris
At the time that the Mabo judgment was handed down, on 3 June 1992, there was scant attention paid to the decision or its likely consequences. The election of Jeff Kennett as Premier of Victoria of 3 October 1992, however, has coincided with a dramatic upsurge in analysis, conjecture and even hysteria relating to the High Court Mabo decision.
Throughout the term of the Cain and Kirner state Labor governments, the opposition coalition were dogmatic in their opposition to the granting of land rights. Prior to the state election the Liberal-National party coalition did not have a recently drafted policy for Aboriginal affairs. Queries concerning Aboriginal affairs at a State level were directed to the Federal Liberal party policy. Confusingly, the Federal Liberal party document noted that “land administration is a matter for the States.”1 Just prior to the State poll on 3 October 1992, the Victorian coalition parties issued a statement on Aboriginal issues which affirmed its support for "the provision of appropriate public lands to local Aboriginal communities where the historical facts warrant that course."2 Land granted under this coalition policy was to be freehold, but there was no provision made for the establishment of a land claims tribunal or a procedure to enable such claims to be made.
Upon the election of the Liberal-National coalition the Kennett government's approach towards Koori issues was soon evidenced by the decision of the Minister for Conservation, Mr Birrell, to reinstate the Western names of the area in western Victoria known as the Grampians National Park. The initiative of Steve Crabb, the Labor Minister for Tourism, to rename the Grampians as Gariwerd and to restore 76 traditional names and adopt nine rock art sites' names created a storm of controversy.3 Barely two months after being elected to office, the Kennett Government dropped Gariwerd from the official name for the region and reverted to the European names for the sites. The reversal of the naming was made without any consultation with the local Brambuck Aboriginal Co-operative and was all the more insensitive for the fact that the decision was made on the eve of the International Year for the World's Indigenous Peoples.
The meeting of the Council of Australian Governments in June 1993 also offered a clear indication of the Kennett government's attitude towards Mabo claims in Victoria.
At that meeting Mr Kennett rapidly emerged with Richard Court, the Liberal Premier from Western Australia, as the most confrontationist of the State's leaders. On the evening of 8 June it was Mr Kennett who proclaimed the Commonwealth proposals to be unworkable and stated that the Victorian State government would legislate in its own right to validate titles and be responsible for the compensation payments arising from the validation.4 The meeting on the following day confirmed the intransigence of Kennett and the meeting disbanded without any agreement being reached between the States and the Federal government. After recalling the Victorian Parliament to enact emergency legislation designed to protect existing land titles in Victoria, granted after the Racial Discrimination Act 1975 (Cth), (RDA), came into operation, Mr Kennett indicated in midJune that he would be willing to withdraw the legislative proposal if the Commonwealth government agreed to legislate to validate all titles issued after 1975. 5
After the June meeting of the State Premiers and the Prime Minister the first Victorian claim based upon the Mabo precedent was lodged with the High Court. The claim was made by the Yorta Yorta people and takes in an area of approximately 50 000 hectares of Crown land, comprising the Barmah and Moira state forests near Barmah and the Gunbower and Perricoola state forests between Echuca and Koondrook and Kow Swamp, which is located south of Cohuna.6 The Yorta Yorta claim also received mention in Parliament in July during Mr Kennett's introduction of the Land Titles Validation Bill. In his speech Mr Kennett drew an analogy between the Yorta Yorta claim and the one lodged by the Wik people at Weipa in Queensland's Cape York region.7 In seeking to emphasise the similarities between the Wik people and Yorta Yorta claims and imply that the Victorian claim was based solely upon political opportunism, Mr Kennett failed to acknowledge that the Yorta Yorta people had been pressing their claims for land since 1860.8 Mr Kennett also chose to reiterate his claims that the "Wik style" claim might represent a threat to suburban backyards.9 Although Mr Kennett subsequently conceded that the Mabo decision did not represent a threat to suburban backyards,10 his comments exemplified the climate of misinformation and hysteria which have been attached to the Mabo debate.
The Land Titles Validation Bill was introduced into the Legislative Assembly on 21 July 1993.
According to Mr Kennett, the purpose of the Land Titles Validation Bill is to resolve uncertainty over grants of land made since 31 October 1975, by confirming all existing titles. Provision is then made for Aborigine groups or persons to seek compensation to interference with their customary title. Th use of the phrase 'customary title', instead of the 'native title' referred to in the Mab decision, seems to be a deliberate attempt by the Kennett government to avoid phrasing its legislation in the same terms as those of the High Court decision. 'Customary Title' is defined in clause three as meaning:
(a) a right of any nature to or to the occupation, use or enjoyment of land by Aboriginal persons in accordance with Aboriginal tradition; or
(b) a right comprised in, or directly or indirectly arising out of, derived from or associated with, a right of a kind referred to in paragraph (a), whether or not the right is itself a right to, or to the occupation, use or enjoyment of, land.
An Aboriginal person or group seeking compensation for the loss of customary title over land through the confirmation of title: is also required to give the claim to the Minister for Crown Lands within 15 years of the Land Titles Validation legislation being enacted.11 Claims for compensation under the Validation Bill require that the claimant group should forward to a Referee of Customary Title particulars which detail the claimant tribe, clan or group, the land which is claimed, particulars of customary title, the facts relied upon to establish the existence of customary title and any other matters that might be prescribed (cl.9).
Once a claim has been lodged under the terms of clause 9, a copy of the claim must be lodged at the Registry of Aboriginal Claims within 28 days and all other local Aboriginal communities must be alerted as to the existence of the claim (cl.11). Particulars of the claim are then required to be published on at least three occasions in separate weeks including publication in a newspaper circulating generally in Victoria and also a newspaper located in the area in which the claim is made. Pursuant to clause twelve, an interested person may make a submission or objection to the claim within six months of it being lodged. Once the Minister has received a claim, it is required that he should issue the claimant a statement in reply in writing within three months of the last date upon which such a submission or objection might be lodged (effectively a period of nine months). Once a claim is before the Minister for determination, a statement must be issued which either admits the claim, admits the claim partially or rejects the claim (cl.13).
After the statement of claim has been issued by the Minister, the claimant and the Minister may enter into a deed of settlement pursuant to clause 14 of the Bill. The deed of settlement specifies those persons or the class of the persons who are to benefit from the settlement and includes the provisions of the settlement. Provided that any objections to the claim have been withdrawn, either the claimant or Minister can then apply to the Court for confirmation of the settlement (cl.15).
Where there is a dispute concerning a claim or an objection has been made to a claim and not withdrawn, the Supreme Court may refer the application to a Referee of Native Titles (cl.18). The position of Referee is meant to provide the Supreme Court with expertise in determining claims and the Referee can be called upon to investigate a claim, to assess whether an award of compensation should be made, to calculate the appropriate compensation figure and to give assistance in any matter which the Court deems relevant. After consideration of a claim, the Court can either admit or reject it, oi admit the claim in part only (cl.20). Pursuant to clause 21 the Court can then determine the compensation commensurate with the loss of customary title or the diminution of rights under customary title. In determining the figure for the compensation, the Supreme Court has recourse to the procedures used in the compulsory acquisition of land under the Land Acquisition and Compensation Act 1986 (Vic). The awarding of compensation for minerals or petroleum is, however, specifically excluded by the terms of the Bill and the Bill also preserves the operation of the relevant sections of the Mineral Resources Development Act 1990 (Vic) and the Petroleum Act 1958 (Vic). The issuing of an Order under sections 15 to 29 of the Validation Bill also serves to disallow any further claims made relating to customary title over the land in question (cl.24). In the event of Commonwealth legislation awarding compensation relating to the land which is confirmed by the operation of the Validation Bill, then compensation is not claimable under the Victorian system (cl.26(2)). The operation of section 85 of the Constitution Act 1975 (Vic.) is also altered pursuant to clause 28, which excludes appeals to the Supreme Court over the confirmation of existing titles and the awarding of compensation (cl.26).
Following the second reading of the Validation Bill, the Scrutiny of Acts and Regulations Committee convened a public hearing on the Bill on 3 August 1993. The submission by the Victorian Aboriginal Legal Service (VALS) strongly criticised the lack of consultation amongst Koori communitites about the content of the proposed legislation and the decision to use the Supreme Court to hear claims for compensation 12 In both instances it was argued that Kooris were discriminated against, since communities would have neither the resources nor finance to bring actions. The decision to use the Supreme Court to either confirm settlement of a claim or to determine a disputed claim 13 also ran counter to the recommendations of the Commonwealth government discussion which opted for a system of specialised tribunals, arguing that it would prove a "quicker, more efficient, less adversarial and more systematic process than reliance on the courts".14
The VALS submission also questioned the capacity of the Bill to avoid application of slO of the RDA. Although the Bill purports to give Kooris some rights over customary title land by granting compensation, it is argued that merely the provision of monetary compensation cannot be equated with a full enjoyment of rights over property.15
The other criticisms raised by VALS are concerned with the lack of Koori involvement in the determination of claims by the Referee, the establishment of special evidentiary rules to allow for the speedy clarification of customary title and alteration to the provisions relating to compensation. The VALS submission argues that the use of the Land Acquisition and Compensation Act 1986 (Vic) is prejudicial to the interests of Kooris in that it does not take account of the deep spiritual links which are felt for the land and that the "lands which Kooris may consider to have invaluable cultural significance may have a poor market value".16
The positive aspects of the Validation Bill identified in the VALS submission include the fact that the term 'customary title' is used instead of 'native title', that the proposed validation of past grants does not seek to extinguish native/customary title, that the Bill recognises current rights under Aboriginal tradition in any land and that compensation might be claimed as a right for the interference with customary title through the confirmation of titles pursuant to clause 6 of the Bill.17
The proposed Commonwealth legislation on Native Title, which was released on 2 September 1993, is concerned primarily with validating Commonwealth laws, acts and grants of land that happened before 1 July 1993 and allowing State and Territory governments the capacity to do the same. The legislation is also concerned with establishing procedures for future dealings with native title and the establishment of a Native Title Tribunal to decide claims for native title.18 To be recognised by the Commonwealth, the State or Territory bodies are required to have both a "nationally consistent approach to recognition of native title" and a process which allows for the notification and registration of claims, the determination of native title and granting of compensation 19 The Commonwealth legislation also requires that Aboriginal and Torres Strait Islander expertise should be utilised in the operation of the relevant Tribunal.
The Commonwealth and Victorian government bills discussed in this paper share the common objective of validating grants of land that might be invalid due to, respectively, the existence of native title or the operation of the RDA, although there are differences in the time-frames over which each bill purports to operate. At this point any similarities between the legislative proposals cease. The Validation Bill makes no provision for dealings in land beyond the granting of compensation. In the case of future grants over land where native title has been established, the Victorian legislative proposal could not operate because it does not provide for negotiation between parties or the establishment of a recognised body to hear native title claims. Even in the appointment of Referees of Customary Title under the Validation Bill there is no specification that the position should utilise Koori expertise or have any consultation with Kooris.20
Since the Validation Bill does not meet any of the criteria fisted which would allow the State body to operate in the place of a Commonwealth Native Title Tribunal 21, the Victorian legislation would most likely be deemed invalid and the Commonwealth Bill would act to cover the field.
A month before the Kennett Land Titles Validation Bill was introduced into the Victorian Parliament, the then State ALP leader, Mr Jim Kennan, observed that the Premier had consistently opposed justice for Aborigines and possessed a "totally inflammatory, redneck approach to Aboriginal issues".22 The behaviour of Mr Kennett during the abortive Council of Australian Governments meeting in June 1993 seemed to give credence to Mr Kennan's allegations. The conciliatory stance now adopted by the Victorian Premier seems totally at odds with his earlier belligerence. The negotiated settlement to the Federal Government's Mabo legislation can therefore be seen to have had two positive developments for Victorian Kooris. Firstly, there is evidence that the State Premier of Victoria endorses a legislative package which Aboriginal groups have, for the main, supported. The second key point is that the draft Mabo legislation itself offers some hope, although still undefined, of a social justice package to benefit those Aborigines who have been dispossessed of their native title rights.23 In particular such a package could be expected to benefit urban Kooris in south-eastern Australia who could not otherwise expect to gain anything from the Mabo decision. After the new Mabo proposal was announced Mr Kennett stated that it was "not an issue any longer to be approached on a political basis .24 If such bi-partisan sentiments are supported by the Federal Coalition the Prime Minister's dream of a reconciliation process must seem far more realistic. For Victorian Kooris it can also be seen as one of the most positive developments in the recognition of land rights for many years.
The Federal Government's amended legislative response to the native title issue was released on 19 October 1993. The negotiated deal was widely applauded amongst Aboriginal groups for forging a deal which "permanently changed Australian politics through the creation of a new Aboriginal leadership".25 Significantly the Prime Minister managed to shift from a stance supportive of the States and the pastoralists to one which took account of the opinions of Aboriginal negotiators, without losing the support of the former groups. In an ironic twist it was the Victorian premier, Mr Kennett, in close consultation with the Prime Minister during the negotiations, who praised Mr Keating's "diligent" efforts and urged the Federal Coalition to support the new Mabo legislative proposal.26
1. Liberal-National Party, Aboriginal Affairs Policy, October 1988, p9.
2. Liberal-National Coalition Policy, Statement on Aboriginal Issues, August 1992, p2.
3. On the naming of locations, see The Koori Tourism Unit, "The Restoration of Jardwadjali and Djab wurrung names for the Rock Art sites and Landscape Features in and around the Grampians National Park", 24 May 1990. For the background of the naming project, see Birch,T., 'Nothing Has Changed", Meanjin, Vol.51, No. 2.
4. Taylor, L., "The Mabo Division", The Weekend Australian, June 12-13,1993.
5. Ormonde, T., and Darby, A., "Kennett opens door for Mabo manoeuvres", The Age, 16 June 1993.
6. Magazanik, M., Ormonde, T. and Willox, I., 'State's First Mabo Claim", The Age, 20 July 1993. 7. Dunlevy, L., "Yorta claim similar to Weipa: Kennett", Age, 22 July 1993.
8. Aboriginal Newsletter, October 1984, ppIO-11.
9. Magazanik, M., et al, op cit.
10. Dunlevy, L., "Kennett concedes homes not at risk", The Age, 21 July 1993.
11. Clause 7(2), Land Titles Validation Act 1993 (Vic).
12. Victorian Aboriginal Legal Service, Submission to the Parliamentary Hearing Committee on the State Govenunents Land Titles Validation Bill 1993, 4 August 1993, pl.
13. Clauses 15 and 16, Land Titles Validation Bill 1993 (Vic).
14. Commonwealth Government, Maho: the High Court Decision on Native Title Discussion Paper, June 1993, p32.
15 Ibid, p4.
16. Victorian Aboriginal Legal Service submission to Parliamentary Hearing Committee, 2 August 1993, pl.
17. Ibid, pp3-4.
18. Commonwealth of Australia, Summary Guide to Proposed Legislation on Native Title, September 1993, pl.
19. [bid, para 78.
20. Clause 18, Land Titles Validation Bill (Vic) 1993.
21. Commonwealth of Australia, Mobs: Outline of Proposed Legislation on Native Title, September 1993, para 78(b).
22. "Keating v Kennett II: Mabo Showdown", The Sunday Age, 13 June 1883.
23. Taylor, L., "Keating Makes Mabo History", The Australian, 20 October 1993.
24. Ibid.
25. Willox, I., "Aborigines praise PM", The Age, 20 October 1993.
26. Staff Reporters, "Applauding Kennett urges Hewson to back package", The Australian, 20 October 1993 and Willox, L, Taylor, L.,"Joys of Ruby Tuesday replace sour memories of Black Friday", The Age, 20 October 1993.
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