K
PRIME MINISTER
STATEMENT BY THE PRIME MINISTER, THE HON P. J. KEATING, MP
MABO LEGISLATION
Today marks an important point in the Government's resolution of the Mabo issue.
The Government is releasing a detailed outline of its proposed legislation. The
legislation will resolve the uncertainties created by Mabo, while ensuring that native
title is treated with fairness and justice.
Our proposals are also today being sent to State and Terrtory Governments,
Aboriginal and Torres Strait Islander representatives and relevant industry bodies. We
wish to proceed expeditiously, but also wish to provide a reasonable opportunity for
consideration of our proposals. Final decisions will then be taken by the Government,
a Bill prepared and the legislation introduced into Parliament in October.
The legislation will necessarily be complex. The issues are complicated ones.
But running through the complexity and the detail are certain clearly drawn lines of
policy and principle:
1) ungrudging and unambiguous recognition of native title in Australian law;
2) a fair, rigorous and efficient means for determining who has native title, where, and
what the key attributes of that title are in particular cases;
3) a just and workable regime under which dealings in land can go on, and which
provides clear processes within which our vital land based industries can operate;
4) the right of Aboriginal and Torres Strait Islander people to be asked about
proposed actions affecting native title land, but without any special veto or
" locking-up" of the land;
full security for people holding grants of interests in land provided by governments
in the past, and at no cost to them;
6) fair compensation for any extinguishment or impairment of native title rights; and
7) an opportunity for the States and Terrtories to manage dealings in land which
affect native title so long as they meet the standards for recognition and protection
of it set out in the Commonwealth legislation.
These are the solid, principled foundations of our policy. They respond to the calls by
industry for certainty and for clear rules under which land dealings can proceed. They
respond to the equally legitimate demands by Aboriginal and Torres Strait Islander
people for the rights accorded by the High Court decision to be respected in Australian
land management. They respond to the calls by the States and Territories for
recognition of their key role in dealings in land under our Federal system.
And they respond, I am sure, to the wish of the wider Australian community namely
that Mabo be accepted, but also that it be made to work.
Ours is no jerry-built proposal designed to provide a quick fix for this or that
particular sectional interest. We are building something to last, because the
implications of the High Court's decision will now be with Australia forever. It is
fatuous, unjust and impractical to the point of irresponsibility to suggest that the
decision might somehow be ignored or overturned. And any policy which sees only
one side of the equation is destined for failure.
From the outset the Government has had twin aims:
justice for Aboriginal and Tortes Strait Islander people in relation to legal rights
granted by the highest Court in the land; and
the integrity of our land management system as one of the foundations of our
economy.
The alternative to simultaneous achievement of these two goals is conflict, antagonism
and endless litigation. We need a coherent, balanced approach which achieves a
reconciliation of the two goals, a reconciliation managed by Government rather than
left to fate in the courts. Our proposed legislation alone among any so far proposed
in Australia -will do this.
Let me now highlight the main provisions.
First, the Bill -will remove any doubt which the existence of native title creates about
the validity of existing grants of interest in land. Nobody holding any, land tenure need
have any fear on this score once our Bill is passed.
Second, the Bill will not leave up in the air what impl icat ions this validation of past
grants has for existing native title. It will make clear that for freehold, and for
residential, pastoral and tourist leasehold grants, the validation extinguishes any native
title rights inconsistent with those grants. For mining leases, and lesser interests over
land such as licences and permits, the validation will not extinguish the native title.
But the Bill will confirm that any native title is subject to the lease or licence for as
long as it runs. I emphasise that this is totally consistent % rtexsing practice in
relation to mining leases over other private interests in land.
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Third, the approach to validation will preserve native title to the maximum extent
possible. Those who would like to see wholesale extinguishment should be required to
answer this question: How can it be just to end an Aboriginal legal right which has, by
definition, been preserved for hundreds and perhaps thousands of years in order to
validate an invalid grant when there is no need to do so to achieve that objective?
Thus: * the Bill will permit the reassertion of native title rights at the conclusion of a
mining lease or lesser grant; and
* it will protect any legal rights of native title holders which can co-exist with the
rights under the grant.
Fourth, in validating past grants, the rights which people may have to renewals or
extensions in the future will also be protected.
Fifth, having cleared up the problems of the past, the Bill goes on to provide a
comprehensive framework for future land management by the Commonwealth, State
and Territory Governments. This will allow dealings in land to go on efficiently, but
with native title being properly taken into account. The Bill recognises three basic
ways in which future dealings affecting native title land can proceed:
it makes provision for conversion of native title to statutory title, should Aboriginal
or Torres Strait Islander people wish. In this way they have the flexibility to deal
with the land, for example leasing it for tourist development or selling part for a
mining project;
it makes provision for acquisition of the land by a government ( for example for
some essential public purpose) and for the extinguishment of native title in this
case. The native title holder would be afforded the same protections of fair process
which apply to anybody else; and
the Bill will provide fair and workable processes of notification, negotiation,
arbitration and determination where a government proposes to make a grant of
interest over the land. The native title will be subject to the grant for the period of
the grant, not extinguished by it forever.
Sixth, the Bill recognises that some grants ( for example a major mining lease) will
have greater impact on native title holders and their land than other grants ( for example
most exploration licences). We are therefore providing an expedited process for
decisions about grants of the latter kind, a process which still however affords rights to
Aboriginal people to be asked and to have their say.
Seventh, the Bill provides processes for managing dealings in land in the inevitable
interim period before we know whether native title actually exists in a particular area.
There must be no hiatus. Land dealings cannot come to a halt. The key here is
appropriate notification of, and consultation with, bone fide claimants and relevant
Aboriginal organisations.
Eighth, the Bill gives Aboriginal and Torres Strait Islander people a right to
compensation on just terms where native title is extinguished or impaired whether in
relation to validation of past grants or the issue of future ones.
Ninth, the Bill will establish a National Native Title Tribunal, comprising:
Judges of the Federal Court who will hear native title claims and determine the
existence, boundaries and attributes of native title over particular land;
the Tribunal Registrar, who will registcr claims and decisions about native title,
and will need to be satisfied that a claim meets certain standards before it is
registered; Tribunal Assessors, who will mediate claims; and
Tribunal Members who will assist negotiations between native title holders,
governments and people seeking grants, and make decisions if negotiations fail to
produce an agreement.
Tenth, the Bill will permit the Commonwealth to accept State and Territory bodies in
place of the Commonwealth Tribunal and State and Territory processes for the
handling of grants of interest in land if they meet the criteria set out. There can be no
legitimate complaint that we are putting the States in a strait jacket they have the
option to come up with one of its own which equally well satisfies the objectives.
Finally, the Bill will make certain provisions in the interests of the community as a
whole: that laws and regulations of general application apply equally to native title land;
that governments are able to confirm existing Crown ownership of resources; and
that existing public rights of access to such places such as beaches, waterways,
recreation areas and so on can be confirmed.
With this proposed Bill the national government is accepting its national
responsibilities. The Commonwealth has profound obligations to Aboriginal and
Torres Strait Islander people, to the protection of their rights under the law and to the
betterment of their economic and social condition. We also have profound obligations
to all Australians for the security of their rights in land, and for the wellbeing of the
national economy.
Others may feel they have the luxury of taking a narrower view, of pushing a particular
interest or of following the instincts of short-term political expediency. We do not.
As Australia's Government we cannot.
Regarding the role of the States and Territories, I reiterate what I have put to them
namely that the Commonwealth's preferred approach is complementary legislation,
co-operatively achieved. Therefore, as well as inviting their comments on our
proposed legislation, I invite State and Territory leaders to join with us in a national
approach. Our proposal
permits the States to run their own land management, with the Commonwealth
performing the role most appropriate to it; setting national standards and
establishing an overall framework;
provides legal certainty to the States that they are able to validate existing grants;
provides clewr and fair " rules of the game" for dealings in land and to assist
economic development; and
can be underpinned by the Commonwealth's preparedness to accept an appropriate
responsibility, with the States and Territories, in relation to funding.
This legislation will not satisfy everybody's demands. It would not be good legislation
if it tried to do so, and such an enterprise would be impossible. Rather, our proposal is
the product of intensive consideration of each of the issues on their merits. In this way
we have achieved an approach which has consistency and integrity.
It is also the product of the extensive process of consultation on which the Government
very deliberately embarked last year. We have not been deterred in that time by
pressure, misinformation or hysteria from the pursuit of good, durable policy. We
have stuck to the timetable announced at the outset. The outcome will be all the better
for the time that has been taken to hear, understand and reflect upon the views that
have been put.
This proposed legislation gives Australia a way of settling the land management
challenges posed by Mabo. But the Government remains committed to the view that
the significance of Mabo does not begin and end there.
The crux of the matter is that the High Court has formally recognised what should
have been accepted long ago that Australia was not Terra Nullius, a land belonging
to no-one when the Europeans arrived. There were prior owners. They were often
dispossessed. To understand this deeper significance of Mabo is to recognise that it provides an
opportunity and obligation an opportunity for Aboriginal and Torres Strait Islander
dignity in our society and for genuine reconciliation; an obligation to press forward
with initiatives directed towards greater justice and economic development for
Aboriginal and Torres Strait Islander people.
As a second stage in our response to Mabo, I expect to make announcements about
these wider matters later in the year.
CANBERRA 2 SEPT1EMBER 199