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PRIME MINISTER
TRANSCRIPT OF THE PRIME MINISTER, THE HON P. J. KEATING MP,
QUESTIONS AN, 9 ANSWERS, PRESS CONFERENCE, COAG MEETING,
MEL8BOURNEl 10JUNE 1993
E& OE PROOF COPY
0: What do you want to do from here Mr Keating?
PM: We will reserve our position and go back and think what response there
should be. mhe States have said, Premier Kennett last night when this
debate was proceeding quite well unilaterally told us that he wasn't
having a bar of these points and that he would unilaterally legislate In his
Parliament to validate the titles. I said, well if States believe they can
validate the titles and pay the compensation after all you Issued the
leases, you Issued the grants of Interest in land, If you can validate the
titles and pay the compensation fine, do it.
0: Do you believe they can?
PM: It may be possible, but if you look In our text at page 25 we say the
question needs to be addressed whether the failure to accord such
procedural requirements to native title holders Is In breach of the Racial
Discrimination Act. To validate the titles there are two things which have
to happen. There has to be compensation paid, that is for the title to
have been issued In a non-discriminatory way there had to be
compensation paid and procedural fairness. There can not have been
procedural fairness when no Aboriginal person would have been
engaged largely In the Issue of these grants of Interests say 15, 10, 12
years ago. The question Is whether and I think we have got another
reference at page 48, if this is so then the actions to be taken now to
validate past grants and which affect native title may need to conform
with relevant procedural requirements, and It goes on Commonwealth
legislation would be possible to adjust or remove the procedural
requirement under the Racial Discrimination Act. Premier Kennett told
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me last night that he had had legal advice that VIctoria, the Victorian
Parliament could validate Victorian leases and that he would-carry the
comsation, but of course the cost of compensation in Victoria would
be Just miniscule compared to the cost of compensation In Western
Australia or Queensland. So it was a Victoria first policy and everyone
else later.
0: Pri me Minister, how do you view Premier Courts claim that Western
Australia Is a special case given the amount of land that is likely to be
claimed.
PM: A special case in what sense?
0: He argues it Is a special case because of the amount of crown land and
leases thagjpy be subject to Mabo style claims.
PM: I don't follow his point there, special in what respect?
0: For example the difference with Victoria was t the view was that they
have managed to extinguish a lot of the native title should only have
the same level of compensation..
PM: That Is true and that is why I am sure a number of Premiers were
somewhat taken aback by Premier Kennett's insistence that he could
validate titles and pay compensation when they knew the costs of
compensation could be very large.
0: What do you think the effect will be of Mr Kennett's planned ations?
PM: What he says he seeks to do is to validate the titles. Understand this
these grants of Interests In land have been Issued by state land
managers. If the States can validate the titles and pay the
compensation so that the grants In interests have been validly Issued
fine, but you have got to remember that the Commonwealth offered to
pick up all the compensation and to validate the titles.
Q0; Would you now impose on the States through Commonwealth legislation
native title?
PM: I sad in our proposal that the Commonwealth would legislate to
establish a framework for the recognition, protection and management of
native title and that the Commonwealth would establish tribunals which
would operate in the absence of similar appropriate mechanisms In the
States. In other words it a State was prepared to establish its own
tribunal and after all land management is a State Issue so If the States
establish tribunals that operated In accordance with the Commonwealth
framework, that would be fine. But part of the proposal always was that
the Commonwealth would establish a framework.
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0: could legislate to recognise native title, establish tribunals to award
native tWte In the future?
PM: I think the Commonwealth has that power.
0: Will you use it?
PM: Again, we have got to consider our position again. I know that Premier
Kennett said to you that we were Insisting on a couple of issues what he
calls beyond Mabo such as a national fund for land acquisition. You
have got to understand this It Is only Aboriginal and Torres Strait
Islander people who can demonstrate a connection with the land, a
continuing association with the land who will succeed In a Mabo claim.
For manyAorginal and Torres Strait Islander people they will receive
no benefit frm the Mabo decision therefore for those disposessed of
their land, unable to make a claim there needs to be another social
justice package of land acquisition which has to be part of the spirit of
the Mabo decision. Premiers Kennett and Court and others reject that,
but the argument from them Is I'm sure to you that the Commonwealth
would not agree with their proposals because of our Insistence on these
extra Mabo positions. The reasons there was no agreement today is
they would not accept the core proposition that the mechanisms had to
be established to hear and award native tUte claims. They would not
accept that proposition and so therefore there was no and could be no
agreement.
0: Mr Keating, what does the breakdown of this conference mean to the
nation?
PM: I think as I say in the statement Premiers Court and Kennett have got to
explain to their communities and their business communities how when
the Commonwealth has offered to validate these titles and pick up all the
compensation they rejected the offer and how they believe they can
bring certainty to these titles when in fact it was there and explain to the
Aboriginal and Torres Strait Islander people of this country why they
won't accept the need to give effect to the High Court decision. The
problem Is a number of Premiers take the view that the High Court
doesn't make law and that there Is an executive over-ride on the part of
governments available to us. A part of yesterday's discussion was
about a wholesale extinguishment of native tite across the country, that
States would simply legislate away native title across the whole of their
States.
0: Does the Inability to make any decision today send any message to the
International business community?
JEL: 4
PM: No, these questions of native title ailse In many countries and we have
got a semninal decision here with the High Court made In June 1992 and
we have got to come to termns wthIt I Indcated to the States and this Is
a very key point; there Is nothing stopping a State Issuing a valid lease
meeting the requirements of the Racial Discrimination Act for procedural
fairness and compensation. There is nothing today stopping a State
lands manager issuing a valid lease. What we are talking about is9 the
past leases.
0: Prime Minister when you talk about proposed legislation for a national
framework, Is that to address native land title claims of the future still
leaves a question mark over the 1975 to 1993 validation.
PM: No, the proposition we put was an all encompassing one; to validate
past leases, pick up the compensation, establish a mechanism for
hearing 9T* tawarding native title now and provide a basis within which
States can issue valid leases from here on.
0: But you are talking now about the option of the Commonwealth
legislating on its own.
PM: No, I was asked that and I said we will consider our position but the
Commonwealth was always going to legislate guidelines for the
operation of State tribunals In the heawing and awarding of native title.
Whether the Commonwealth now moves to unilaterally to a regime is a
matter for us to decide.
0: In your statement legislation to set the framework for the awarding
of native title, what exactly does that mean, just a draft..
PM: No, we will start the drafting process of drafting the framework
legislation.
0: Not necessarily legislate?
PM: But not necessaily legislate.
0: When will you continue to discuss this draft legislation?
PM: This Is a matter for Premiers but there Is no point in Premiers telling me
that their State communities don't accept the High Court decision as
though I am supposed to take that as some sort of profound piece of
political advice. Communities in thi's country have to accept the igh
Court decision as I have to accept the High Court decision.
0: Prime Minister, given that there Is no mechanism In place to recognise
native title and the States In your account are refusing to do that how
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can there be any exploration or mining lease or be issued from this
point on if it doesn't contravene the..
PM: Because If a native title holder Is not established but a State wants to
Issue a grant of Interest In land over a particular locality where native
tWte may be claimed, States can advertise the fact in newspapers that
they are Interested In awarding a grant of interest in land over a
particular locality, they can write directly to a land council or to the
people In the area, the Aboriginal people in the area who may have an
Interest in the matter and advise them that they are considering issuing a
grant and to speak with them about it and then make clear that the
matter of compensation will be paid If and when a native title Is granted.
That way a lease can be validly Issued and that is where the commercial
Interest comes in, a lease can be validly Issued.
0: no one ever establishes native title
PM: No, no what I'm saying Is In the interim where a claim for native tite
hasn't been heard or awarded provided that the State has followed a
non-dIscrimInatory procedurally fair process of notification and is
prepared later to arrange the compensation the two key points of
procedural fairness and compensation are covered and therefore the
grant of Interest In land can be validly issued.
0: What do you think it will do to certainty in Victoria, Western Australia and
perhaps New South Wales to go ahead with their own legislation to do
validate past leases?
PM: What would it do to certit?
0: Yes.
PM: Leasees would need to be certain that the legislation competently
validated the leases.
0: Are you going ahead, can they actually be certain of that?
PM: Not entirely certain of that in termns of the advice the Commonwealth has
had.
0: In that case do you have the option then but to go ahead with your own
legislation to prevent that sort of filleting off of the States?
PM: No, we made It clear that In respect of say pastoral leases that If you
have got a lease of 20 years which Is renewed every twenty years, so It
might have been renewed five or six times over a one hundred year
period that that sort of lease we would take it, that that type of lease
extinguished the native title. But obviously a tease of say 10 or 15 years
TEL: 6
over an alluvial gold deposit shouldn't necessarily extinguish the native
tWte and It should be able to revive. We are looking at the principle of
protection of native title for past leases distinguishing between the
continuing type pastoral lease or the tourism lease from say a mining
[ ewse.
0: ( inaudible)
PM: I don't know it may be If the States have been legally advised that they
can validate the legislation, that they In fact can and pay the
compensation because they Issued the leases and the grants of Interest
In land In the first place; they are the land managers. So if the land
manager can through its Pariament validate the leases and pay the
compensation then I've got no problem with that.
0: Don't youirf4ed accompanying Commonwealth legislation to make that
compatible notwithstanding the Racial Discrimination Act..
PM: Well that Is the Issue under question.
0: Prime Minister, Isn't Mr Kennett virtually challenging the Commonwealth
and all Aborigines to have a go at what he Is proposing now again in the
High Court? He said to us here today that what he is putting up In his
ten points on his legal advice Is within the finding of the High Court.
PM:. State Premiers will say what their advisers tell them in terms of the law,
what they believe to be their legal position anid that is up to Mr Kennett,
but you have got to understand this about Victoria, most of Victoria
native title Is extinguished by freehold title. This Is not true of New
South Wales, Queensland, the Northern Territory and Western Australia
and therefore the number arnd variety of leases which might have had a
native title claim and which might have been issued invalidly to be
validated by compensaion would leave a much smaller compensation
bill in Victoria than any other State. So Mr Kennett's unilateral approach
Is basically a beggar thy neighbour approach as far as the other States
are concerned.
0: Mr Keating, on the more social agenda and the reconciliation process do
you think that some of the rhetoric that Premiers have used are divisive
and does threaten to jeopardise the reconciliation process?
PM: Leave my views about their approach to reconciliation process to one
side. Having discussions about whether the High Court can make law
and whether their States have the option of Ignoring a High Court
decision Is taking us nowhere, absolutely nowhere. How do you deal
with that sort of discussion? T1E0L:. Jun. 93 17: 51 No. 024 P. 06/ 08
TEL: 7
0: Do you regret you didn't talk with more the Premiers, so that sorm of
them who appear not to have a greed understanding of the Issues might
have had their minds around It..
PM: Everyone understands the Issues, everyone understood the Issues I
think, perfectly because for a start they have had their own advice, they
have had extensive briefing papers, they have had our own paper which
I think Is a very comprehensive and good document which the
Commonwealth Ministenal Group has put much time Into as has our
Officials Working Party and COAG Is an executive body; you come
along to agree things. The reason you have a heads of Government
meeting Is because officials can't agree things, so the Premiers and
Chief Ministers turn up to agree things. The proposals we had said we
will validate the titles, we will unexpectedly in their terms pick up the
compensation which was never on the table, it was an offer from me to
pick up tkheitompensation, but you must agree to a process of hearing
and awarding native title and they say no.
0: How much in compensation would It cost the Commonwealth?
PM; That Is a matter for judgement
0: ( Inaudible)
PM: We will consider our position and I think the States will consider theirs.
Yesterday this meeting went along with a reasonable degree of
bonhomie with people trying to feel their way through the Issues and I
was taking some of the Premiers who I felt were not certain of our
approach through the issues, but as we wore making our way last night
Premier Kennett uniliaterally said we are going our own way we will
legisiate, we can fix the leases, we will extinguish native title and issue a
statutory title where It suits uis arnd what do you think about that? And
we sald we would think about It over night.
0: How much ground had you given..
PM: Nowhere In our proposals was the proposition that we would take up
compensation for the past leases. That Is eighteen years of leases and
as well as that I adjusted the terms under which State tribunals could
operate Interfacing with the Commonwealth guidelines but provided that
we set up tribunals to hear and award native tite then on a number of
other issues I gave substantial ground but they wouldn't give any
ground. That was the point. They w anted the Commonwealth to
validate the leases and pay the money and they would agree to hear and
resolve Issues ralsed by native title and would accept the High Court
judgement In Mabo that there Is native title,
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PM: Because we didn't agree to anything we didn't give anything away.
0: But did you offer to the meeting that you already told the Aborigines
there would be no absolute veto and under your proposal and also on
the question of extinguishing you had given ground there to extend most
native title revive after the future..
PM: Most native title wouldn't revive, no, I was taking a contrary view that we
had to protect native title and give it a revival, give It the possibilities of
revival, that is co-existence of title. This was one of the points that they
wouldn't accept.
0: ( inaudible)
PM: Even if a mine lasts sixty years, It Is better that native title reverts to the
native title holder than have It extinguished.
0: ( inaudible)
PM: In the matters of principle I think that is true. I think the other Premiers
and Chief Ministers would have come to the party if a package was
coming together. Now on sort of nuances Maybe they would want some
things corrected, but by and large pertaps other Premiers understood
the Import of the package.
Q: ( inaudible)
PM; I said I was prepared to try and define It and of course that Is a very
large subject, I mean mountain chains, chains of mounts can have
cuitural significance to Aboriginal people so it is a matter which Is very
broad, but there had to be a willingness to embrace the whole package.
It was largely a good natured discussion, but that is beside the point.
The point was that the States would not take any executive decisions.
ends.