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Transcripts from the Prime Ministers of Australia

Transcript 8934


Photo of Keating, Paul

Keating, Paul

Period of Service: 20/12/1991 to 11/03/1996

More information about Keating, Paul on The National Archive website.

Release Date: 13/08/1993

Release Type: Interview

Transcript ID: 8934

MB: Well, Prime Minister, welcome to PM. Wayne Goss today said the
Federal Government should validate all title back to 1788. Mining
companies are concerned about their investments and Aboriginal
groups are also unhappy. Hasn't this gone on long enough and isn't it
time, indeed, your job, with the uncertainty surrounding the investment
climate, to sort this out?
PM: It's not my job at all in that respect. I'm not here to resolve
uncertainties that are created by the rights of individuals to take cases
of appeal to the courts. I mean, you might recall that a couple of
weeks ago Western Mining and the Savage River Mining Company
had a similar matter running and Western Mining lost the case.
Now, legislation which wipes out the right of people to appeal is not my
job at a-ll7-And the High Court has made it quite clear that freehold title
issued since 1788 extinguishes native title.
MB: So who's responsibility is it then, now'?
PM: Well Mr. Goss is making it clear that he says he's now picking up
pretty firmly some of the points I made yesterday saying oh yes, I
know, I understand he said, we shouldn't be acting in a non.
discriminatory way. And he said, let me quote him, he said, he claims
he's, " always sought that validation be undertaken on a nondiscriminatory
basis". Well if that's the case why does he want the
Commonwealth for us to legislate and put aside the Racial
Discrimination Act?
See, bear in mind this Michael. That is, that these leases are
Queensland leases. If they're not Commonwealth leases it's the
Queensland Parliament that has to legislate to give statutory power to
these leases. That is, ie. validating them. If the Premier says he's
going to do that in a non-discriminatory way why does he want the
Commonwealth to do anything? I mean, why then do we have to
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introduce an amendment to the Racial Discrimination Act? If he says
it's non-discriminatory, what's the problem?
MB: Well the Wik people are saying that Queensland breached duty of
care by giving the lease to Comalco, now obviously you would agree
with that.
PM: No I wouldn't agree with that. I don't know that it's true. They allege
that. But, you see, this is the point, Queensland is about more than
the non-discri minatory validation of its leases there. There are all
these other questions about breach of trust, there's questions about
indemnity. See what Mr Goss is saying is, ' all I want is nondiscriminatory
validation of leases.' That's not all he wants at all. He
wants us to validate, he wants us to suspend the Racial Discrimination
Act so that some of these other matters like breaches of fiduciary duty
and trust can be dealt with. Arnd as well as that he's asked us for
Indemnification. Now, these are the points which we make very clear
to him.
MB: But couldn't this scenario be repe ated across the country? I mean it's
happening here in far north Queensland but essentially the same thing
could happen anywhere, couldn't it?
PM: Well the High Court has said, and you're welcome to read the
judgement the same as anyone else, that freehold grants of interest in
land and leases extinguish native title. But, it's still, our system of
justice still allows people to take an action against a state or a
company for what they think is a breach of trust or a breach of duty or
some commercial grievance and it Is not the job of the Commonwealth
Government and its parliament to rush in and obliterate that person or
group's right to take such actions.
MB: So how do you take it when Wayne Goss says he wants you to
validate all title back to 1788?
PM: I say it's, what he's asking for and unreasonably asking is that
any matter which might arise about any title issued over the years, that
the Commonwealth obliterates any person's right to take issue with the
supposed owners of that title. Now, there is no problem, the High
Court don't rely on my word the High Court said, ' The issuing of
freehold or leasehold title extinguishes native title'. So it is not the
native title problem. You see, this is the confusion that is here and that
Mr Goss, using these terms, in a sense smooths over.
Native title is one thing, but claims by people for other things like
breach of trust etcetera are another. It's the native title, which is not a
problem in that sense because they are... Let's take the Comalco
leases. First of all, it has to be established if native title existed or ever
existed. Now, let's say it did exist. If the Queensland Government has
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issued leases over that area, it's probably extinguished the native title.
So what is the remaining problem? The remaining problem is breach
of trust and fiduciary duty.
MB: Well what can you do about that? Why not legislate to protect
Comalco in that instance?
PM: But why should the Commonwealth, how can the Commonwealth be
asked? I mean, you understand what words you're putting to me.
You're saying why shouldn't we legislate. What you're saying is, ' Will
you suspend your Racial Discrimination Act to allow the Queensland
Parliament to do a racially discriminatory thing?' Well the answer is
no. The Racial Discrimination Act is there for a purpose. It's to protect
people against discriminatory acts.
MB: Surely other companies could have breached the fiduciary interest as
well. All across the country couldn't they?
PM: And that's why there are claims all the time, in the courts all the time.
But this.-
M13: So Wayne Goss is right then when he says this could happen
PM: But it happens every day of the week. I mean, you just had it with
Western Mining and Savage River last week. It happens all the time.
But is it a government's right to obliterate someone's right? Let's say
somebody wants to resume your house. Would you appreciate it if the
Government of the ACT or New South Wales obliterated your right to
go to the Land and Environment Court?
MB: What does it say about the investment climate we've got then, at themoment?
PM: It just says this is a real world place like every other country in the
world. That people have got inherent legal rights and they're not to be
obliterated by Governments who are spooked by mining companies.
MB: If you did grant special legislation...
PM: Now let me just make this point. We've already given tax concessions
to Queensland to permit the sale of the Gladstone power station to
Comalco. We would like to see that range of investments go ahead.
And as the Cape York Land Council makes clear that the existing
leases are not threatened and the new leases can be negotiated with
the Aboriginal people. But the mining company in particular does not
want to talk to the Aboriginal people and the Queensland government
does not want to talk to the Aboriginal people. They want us to use a
Commonwealth sledge hammer where they can actually sit down and
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negotiate these things. So the Commonwealth want to the see the
project proceed, but we are not about obliterating peoples right at law
particularly when it is not necessary.
MB: Is part of the concern though also that if you do make special
legislation for this, that it would raise question marks about every other
mining lease in the country essentially wouldn't it?
PM: I do not think it does, no. Because a mining lease properly issued
extinguishes native title. All your questions go to Mabo and native
title, but the whole point about the Wik claim is it is more than Mabo
and native title it is breach of trust, it is all these other questions and
that is where we say, this is a Queensland matter, not a
Commonwealth matter. If Premier Goss is saying to us what I am after
here is validation to be undertaken in a non-discriminatory basis, the
simple question is if it is non-discriminatory, after all they are
Queensland leases, validate them with a Queensland Act of
Parliament and all is well.
MB: Does the question of compensation and who is responsible for it lie at
the heart of this?
PM: I don't think so, no.
MB: Who is responsible in this case, Queensland?
PM: It is obviously not the Commonwealth government. These are issued
by the Queensland government in 1958. How can the Commonwealth
government be in any way involved?
MB: So it is Queensland?
PM: In terms of questions of compensation, if all the claims which are in the
Wik set of claims were to succeed, they would be resolved somewhere
between Queensland and the mining company. I can not see by
whatever jump of logic that somehow it is the Commonwealth
government's responsibility.'
MB: What can you do about the states generally though? They were
talking earlier today about holding a separate meeting without you and
I understand that is not on the cards anymore, but it does suggest that
they at least are not convinced that you can deliver on this, doesn't it?
PM: What are you talking about now the Wik claim or Mabo?
MB: No, on Mabo generally.
PM: Mabo as I said yesterday we have already had, we think, quite a lot
of success in the discussions with officials, between the
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Commonwealth and the States and we are proceeding down very clear
principles on Mabo. As I said yesterday quite clear and I will repeat it
to you again Michael the Commonwealth, for the decisions it has
taken is absolutely clear and confident about its position, and it is
developing a piece of legislation that we hope to introduce into
Parliament in the Budget sessions.
MB: But Mabo itself is developing a momentum all of its own isn't it, do you
concede it has gone off the rails a bit here?
PM: There is a fair bit of confusion about it, but that is not helped by the
media either. Here we had the Sydney Morning Herald saying today
that I had ruled out legislation in respect of this Wik matter yesterday,
which I didn't.
MB: Didn't you?
PM: No, no what we said was that the generic legislation that we will
introduce for Mabo will cover the native aspects of Wik.
MVB: You were specifically asked to give that thought and you didn't do that
did you?
PM: No, no, I made that quite clear. Then we had The Financial Review
calling false the distinction between wilful discrimination or breach of
trust and innocent discrimination in the absence of any knowledge of
native title. For me it would seem to be a fairly obvious matter. Then
the other one, there is no difference between McArthur River and the
Wik claims or a potential settlement. What is written often people
saying, journalists writing under their by-lines that there is confusion
about this what they should be saying is I am confused about this, but
they will not say that, they say there is confusion and who's
responsibile for the confusion. The fact is the Commonwealth is
proceeding along principles, we have published a principles document
33 principles, which we gave the States ahead of the Melbourne
meeting, we have given them a general discussion document on it, the
Cabinet has now met on a number of occasions for five or six hours at
a time and enunciated principles, Mabo, conceptually, we have
MVB: Do you rule out Federal legislation in the Wik case?
PMV: 0f the generic variety no. Because the generic variety will come up in
respect of native title under Mabo, but Wik is about more than native
title, that is the point.
MB: But what does it mean in plain language. Do you rule it out? Do you
rule out coming in and solving the stand-off that we have?
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PM: If you are asking me am I prepared to rule in discriminatory legislation
that is by suspending the Racial Discrimination Act to permit
Queensland to pass discriminatory legislation to deny the Wik people
their rights to appeal to the Courts I would not pass such legislation.
No. I wouldn't.
MVB: So the Commonwealth will not step in under any circumstances here, it
is a Queensland problem and that is where it lies?
PIM: You have got to understand yourself, you are putting the questions. A
minute ago I made a distinction between native title issues, that is
Mabo issues, and non-native title issues. Your question is in respect
of which part that native title part or the other part?
MB: Well, any part, we have a confusion here where a company is worried
about an investment.
PM: Yes, but here you are confused aren't you?
MVB: Not necessarily.
PIM: I think you are. Look, let me take you through it there is native title
issues in Wilk and there are non-native title issues.
MB: No, I understand that, but we have a stand-off in a company..
PM: You are asking me will we legislate for the native title issues. Answer
yes, through the generic Mabo legislation. Will we suspend the Racial
Discrimination Act to allow discriminatory legislation to obliterate rights
on other matters No.
MVB: OK, how much is the personality clash between you and Wayne Goss
got to in the road of finding a workable solution?
PM: I do not think at all, although I notice he said today, he put a press
statement out Premier Wayne Goss today said it was unfortunate
the Prime Minister resorted to personal criticism in response to
Queenslands request that is yesterday. I have made no personal
criticism of him what so ever. I am just dealing with the issues at their
MB: Coming crying back to mama and some of the things you said just
before you went overseas..
PM: That is a commentary on the notion of the States saying when I go to
Melbourne, well hang on we have got rights here and interests, and
the moment there is a problem all of a sudden it is transferable to the
Commonwealth. So, when the Commonwealth is in there trying to get
a resolution of things for Mabo, then we have less than full co-
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operation, the moment there is a problem, ding-a-ling? Back onto the
Commonwealth. I should have thought that was an obvious point to
make and frankly before I made that point, people did not realise, I
don't think, in the broad debate, that things like breach of trust and
fiduciary responsibilities were an issue here.
MB: But you don't have a problem personally with Wayne Goss?
PM: No.
MB: All right Prime Minister, we will leave there. Thank you very much.
PM: Thank you Michael.
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Transcript 8934