TRANSCRIPT OF THE PRIME MINISTER, THE HON P J KEATING, MP
PRESS CONFERENCE, PARLIAMENT HOUSI--
19 OCTOBER 1993
E& OE PROOF COPY
Well, I think you now have some outline in the press statement I published last
night on the decision by the Cabinet in the settlament of the many issues
involved in the question of the High Courts historic decision and the awarding of
Native Title. And I think that it is fair to say that this legislation will put flesh on
the bones of the High Court decision, that it will provide a substantial measure of
justice for Aboriginal Australians, and importantly with that a security and an
efficient system of land management across the country.
As I said earlier this morning this is a new deal ror Australian Aborigines, and as
such, a new deal between the indigenous and non-indigenous people of this
country. The High Court made its judgement and we now have the chance of
legislating away the fiction of terra nullius, and basing our national social policy
with Aboriginal Islander people on a truth rather than a lie.
And from that, of course, will flow not just simply~ justice for Aboriginal people
and a system of land management that works in combination with Native Title,
but a better basis, a real basis, for reconciliation that in the past has eluded us.
Because land is at the heart of Aboriginal dispo'ssession and the repossession
of land must be at the heart of any process of reconciliation in the future.
I think this process has created a new understanding between, certainly the
Government, but the Australian people, I feel and the Aboriginal community. I
would like to pay a tribute here to the Aborigine l leadership under Lois
O'Donoghue who did the courageous thing, took the step, seized the moment to
negotiate rather than demand, and to sit down and work out where Aboriginal
interests truly lie and where they could be offset against the legitimate economic
interests of this country. And in doing that we have been, I think, able to reach a
good settlement.
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Now, as well uppermost in the Governments mind has been the interests of
Aboriginal people in being able to secure and work land, but also there has been
the requirement to see our great land based industries be able to go on as they
have in the past, to be able to access land, to cJ3rry out exploration and mining,
in the case of the mining industry, for grants of interests in relation to the
pastoral industry, or the tourism industry, or commercial development, that we
have a system here now which can happen within reasonably tight time frames
in processes which are exclusively with the States and ones where the States!
imperatives in land management, I think, are being met. From the States' point
of view their interest has been to see that past grants were valid, past grants that
they issued were capable of being validated, and that there was a workable
system for issuing new grants of interest over Native Title land in the future and
at the same time giving Aboriginal people a right to be asked a genuine right of
negotiation, but in the end the rights of the Statios to make decisions in the State
interest, in the State interest on what they think is viable in terms of their interest
in land and development.
But this is a Native Title Bill. The primacy of the, interests are with the title
holders, those people who can make claims, who would wish to make claims and
have Native Title awarded and protected. And the Bill therefore therefore the
primacy of the Bill goes to Aboriginal and Islanicer peoples interests. But it has
that happy mix, I think, between those interests and the interests of the rest of
the country, both in social and economic terms. And I think it does prove that
the cynics are not always right in thinking that differences here were
Irreconcilable, that there was no basis upon which a various interest could be
accommodated in relative harmony, in a package which could be agreed by the
various stake holders. Now, I think that has not been true and I think the
sceptics will have to think again, and if it means that access to land does
something, if late in the piece, about justice for Aboriginal people and their
inclusion in the laws of this country, in respect oif land in our greater society then
we will go along together as one country, as onia nation. And that's a core part
of what Mabo, I think, means.
Can I also say that I think it was important that the High Court in having made
this decision wasn't hung out to dry by the Parliament. That is, prestige was not
put under question, and that a decision well takan and courageously taken was
supported by the Government. There has been more ministerial time devoted to
this issue than any issue in the last ten years, and without that detailed work it
wouldn't be possible to develop a Bill of this sophistication, and without this
sophistication it wouldn't be possible to introduce this sort of legislation. It
wouldn't settle the issues without this sort of soph isti cation, and I may not have
another opportunity, but I want to place on the record the work done by the
officers of our Commonwealth public service, the officers in my department,
Prime Minister and Cabinet, Sandy Hollway, Mike Dillon, Robert Orr and others
who have worked tirelessly and ceaselessly now for over a year on this problem,
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and who had previously worked on the reply to the Aboriginal Deaths in Custody
Royal Commission. They have been now working consistently on these issues
for a couple of years. So, I should like to take the opportunity to thank them, and
also those State Premiers who could see something bigger and something better
and tried to see what could be done to meet both the Commonwealth, the State
and the Aboriginal and Islander interest in this country, and those State officials
who were also involved in negotiation who tried and have materially in some
ways made the Bill a better Bill then it could have otherwise been. So, I might
leave my introductory remarks there and invite cuestions.
J: Can you explain the situation where you have got valid l ' eases, the
situation you talked about yesterday? Will Aborigines still be able to
dedicate their so called residual rights for the residual Native Title lots, or
have they been extinguished as well?
PM: Well, Tom, if Aboriginal people have given up residual rights on invalid
leases, and they have, in a sense why woiuld they bother on valid leases?
I think that is the question, that is, the key word here is valid, and the
validity will, I think, extinguish to all intents and purposes any rights other
than those of the pastoralists, or any other stake holder.
J: Will the Aborigines be able to use .( inaudible)
PM: Well the legal force of the Act will remain. I think the Act remains
unblemished. But how applicable it is to any of this is a moot point. I
mean, that's a matter really for Aboriginal people and their lawyers. I
can't see any application here because o'jr Bill, as I say, emanates from
the RDA and I don't think crosses any of its principles.
J: So, Prime Minister, it's the precedent of post 75 RDA validation that
protects pre ' 75 valid leases?
PM: Say that again.
J-It's the precedent of post 75 RDA validatio~ n by the Federal Government
which effectively protects pre ' 75 valid lealses?
PM: I have got no doubt councel for the defence would certainly argue that.
J: ( inaudible)
PM: Yes, I had a very positive phone call with Jeff Kennett this morning, and I
think that you will find that the States believe that this does provide a
workable basis of land management simply because the key institutions
are theirs. There won't be a Commonweotlth institution granting interest
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over Native Title land other than the ACT Commonwealth Tribunal, and
the ACT and Commonwealth lands, or that which would operate in a noncooperating
State. But for cooperating States there won't be a
Commonwealth Tribunal granting interest over Native Title land. So, all
the economic use side of the legislation is with the States. And we have
kept their structures, we have even kept to their wishes about just terms
being paid only on extinguishment and nct in any other terms, that is, for
any disturbance or disfigurement of the landscape. In all these key areas
the mining warden still remains, reconfigured, but remains as a key thing.
There will be a State ministerial override available if States wish to
exercise it. Of course they will have to do it with due caution, but it is, I
think, a real one. So, from the States' point of view they should regard the
thing as reasonable. As also particular caitegories of grants will be able to
be excluded from the special legislation. That is, the special negotiation
regime. They will have to be negotiated, hat is, those that can go ahead
without a process of negotiation which will keep the system lubricated,
compulsory acquisitions will still be available. it will apply to Native Title
land except where the acquisition is in order to make a grant to a third
party, there will be a negotiating period for that. But the the normal
acquisition right will obtain over Native Title land as freehold land, as I
say, compensation for impairment will be set in an accordance with
current State Territory procedures. So, from the States' point of view, and
of course, the Commonwealth will meet a large part of the compensation
for the period of validation ' 75 to ' 93. That is, all those interests which
would have been rendered invalid by the Racial Discrimination Act, or the
interaction of that Act with Native Title, wo will establish a regime there.
Existing Crown ownership of the sources can be confirmed, and access to
beaches, waterways, recreation areas can be confirmed to.
J: Prime Minister, what changed the position that you held in Question Time
yesterday from what we now have as the final position in regard to valid
title?
PM: Well, I told the Aboriginal people with whom I negotiated last week that I
would argue a case for them that there may be residual rights, however
slim, attaching to some of the leases invalidated because of the
interaction of the Racial Discrimination Act, Native Title or in relation to
the interaction of other Acts. And in argu:" ng that case I understood that it
meant that for those lease holders that thray may face some action.
Regardless of their likelihood of success they may have faced them. And
then last evening in negotiations with the Aboriginal community said well
maybe it is possible to consider a way where there is a greater Aboriginal
community benefit from a more certain set of rights then the slender set of
rights, the uncertain set of rights which might flow from Native Title rights
which were not inconsistent with a grant ini invalid leases. And so the
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proposal we arrived at war, one where past oral leases are owned by
Aboriginal people, and there are many of them owned by Aboriginal
people, or acquired by Aboriginal people that is, for the future as well.
That if those holders can demonstrate a trgiditional linkage with the fand
under the Mabo principles we will turn it into, they will be able at the
Tribunal, or at the Federal Court to pick up a title equivalent to Native
Title. Now, I think this is very attractive for many Aboriginal people,
because as you know there are pastoral leases all over the country, they
own many and will have the opportunity of buying more and this gives
them a certain title and a certain access. And bearing in mind also that
the Commonwealth 2S part of this package is developing a land
acquisition fund of substance, some of those funds could conceivably be
employed in a acquiring pastoral leases which could then become Native
Title areas. So, considering, in their terms, the slender rights and
uncertain rights which may have obtained with invalid leases, they've
bargained something in return which they think is more certain and more
valuable. In that case, equity has been mot, justice has been done and
honour has been settled and a reasonable agreement has been made.
J: On page three of your statement you talk e bout the invalid leases
( inaudible)... before 1975 ( inaudible).., rights as yet unidentified in
law. And then you go on in the next paragraph to talk about, " The Bill will
provide that any leases which might be found to be invalid, in any
circumstances connected with native title, ican be validated." Does that
mean that they have to go to the Court firsi. to identify them or..?
PM: No. That means that the states can validla~ e them. See, we don't validate
the leases, the states do. But they've got to get the legislative authority
from the Commonwealth, via the RDA ( Racial Discrimination Act), to
actually effect the validations in a way which is not ultra vires of the RDA.
And it is the states who will be doing the validating and they will be able
to validate leases which, for one reason or another, may have become
invalid due to the interaction of the RDA or other Acts.
J: So it won't be required to be tested at law first?
PM: No.
J: When the bill provides for the states to val date those leases and where it
provides for extinguishment of native title will there be retrospective
procedural fairness provisions built into that, how will they work and what
safeguards will there be at the end of the clay?
PM: Well, under the special measures provision the Commonwealth will be
validating the titles and paying compensation. So, therefore, because the
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Bill emanates from the RDA and its authority the question about
procedural fairness, in a sense, does not arise. And there has always
boon some very grave legal doubt about whether procedural fairness ever
mattered. The preponderance of legal opinion would be that there was
not a racially discriminatory thing done by a land manager when that land
manager could never have known that native title existed; and that the
payment of compensation was sufficient tD actually validate a past title.
J: Has that been another concession by the Aborigines over the past few
days?
PM: Well, I think they understood implicitly thait the concession was, in a
sense, from the Government. That is, thsit we would employ the RDA
rather than in any way circumscribe or override it, and validate using its
authority.
J: Mr Keating, the deal you've worked out with Aboriginal people on pastoral
leases so that you can extinguish native title there why haven't you
done a similar deal for mining leases?
PM: Because a mining lease is the one variety of lease which does not
extinguish non Aboriginal title. A mining lease can be laid over non
Aboriginal title and when the mining ceases, the title revives.
J: But you said pastoral leases didn't extingu~ ish either
PM: The thing is, this is not so with other forms of title. But the symmetry here
is that a mining title does lie across other forms of non Aboriginal title and
the other forms of non Aboriginal title come back to full bloom, or are
capable of coming back to full bloom, whon the mining ceases. That is
the principle which is being established.
J: Is the land acquisition fund now part of this legislative package or is that
coming with the social justice package?
PM: It will be mentioned in the Bill, certainly th~ e second reading speech and, I
think, the Bill. But the development of it will come in a second piece of
legislation in the Autumn session of next year. So that there will be a
process of negotiation with the Aboriginal community who will then, with
the government, sit down and try and design a set of arrangements where
the control and the functions and the objectives of such a fund can be
reasonably met or successfully met. But Aboriginal and Islander
people will know, when the second reading speech on the native title Bill
is given and the Bill is introduced, that tha~ t will be an integral part of it
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7
though it will not have been fleshed out ir substance, that is, in terms of
design.
J: Did you get last night from the Aborigines, agreement on these last
minute alterations in the package
PM: Yes. I met the same group that I had met the previous week, last evening
for probably an hour and a half, on and off. And we considered all these
issues, considered the weight of Aboriginal community interests and
where they lie when a lot of the claims go, about the probable success of
litigation, down to what people really think: they could secure vis a yis
what was likely to be offered. And that's when, I think, those judgements
were made.
J: Once rural land has been acquired, Primet Minister, and converted to
native title, it will then be the case that it can never be sold again?
PM: Well, I think the thing about native title is that government can acquire it;
it can be surrendered: but it will, I think, in the hands of the Aboriginal
community, probably be in perpetuity.
J: So, no matter how badly the property is run, no matter how badly run
down it becomes unlike existing farmland where, when things go wrong
it just stays on as it is?
PM; Well, I don't think you should assume.... tis is true with non Aboriginal
holdings across Australia, David. A lot of farms are over grazed or poorly
managed or where there is acute soil eronion this is not something
which would be a feature of Aboriginal holdings. In fact, I should imagine
that given the success which Aboriginal people are having in managing
land and getting even better at it and understanding the value of land
management that they'll make pastoral properties succeed. But there
is also the other thing these are lands which will be traditional lands,
which, of course, have other values and cither connotations to them. So it
has, if you like, a dual function of meeting a social need as well as an
economic need. And my assumption is tleat Aboriginal people, given the
opportunities to manage pastoral properties and they've had now some
substantial ones can do it and do it well.
J: Prime Minister, given that the farmers of Western Australia have an
absolute right of veto over development, would you envisage in this
passage that native title holders in Western Australia would have the
same right? And if Western Australia does not come to the party in this,
which it does not appear that they're going to, would native title holders in
Western Australia who are dealing througih a Commonwealth regime have
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the same right to get equity of rights with freehold farmers in Western
Australia?
PM: Well that's a matter, I think, of legal opinion. I don't think we're certain
about that. And, of course, Western Australia could make it certain by
removing a veto right in the hands of non Aboriginal pastoralists. In which
case there would be no discrimination. But again, the authorities of this
Bill vis a vis the states, it's hard to say where the balance of that lies. I
wouldn't assume, and I don't think I would say, that the presence of a veto
right in the hands of Western Australian pastoralists will mean, ipso facto,
that such a right exists in the hands of a native title holder. In fact, I think
I would say the converse. But again, it will be a matter for legal opinion
and also a matter for the state of Western Australia itself.
J: Prime Minister, you said this was a good deal for the states. Have you
got any idea how many state Premiers will come on board now?
PM: Well, I spoke to Premiers Goss and Fahey late last week. I've spoken to
Premier Kennett, I think, last week and again today and when I have an
opportunity I'll speak to other State and Territory leaders today. Look, I
think that the negotiations at the Commonwealth bureaucratic level and
the state bureaucracies, about these issues, has helped put into focus the
states' bottom lines on land management. We've been able to see what
of that we can accommodate and what we can't. The great bulk of it has
been accommodated. And I think that whsan they look through the Bill, a
state land manager will say, " By and large, my prerogatives here, are met.
The economic, the land management prerogatives here, are met."
But at the same time, met in a way which gives Aboriginal people a right
to be asked about their property and a right to be involved in a real
negotiation, not just a perfunctory one. Not a courtesy but a real
negotiation. And in that, in maintenance of these state instrumentalities
and state systems I should think most stales will find it an acceptable
package. And particularly as the Commonwealth is prepared to meet a
substantial part of the cost.
J: Mr Keating, have you had any discussions with the Greens or the
Democrats on this, so far? And do you think it will get through the
Senate?
PM: Well, I've had a couple of discussions with them over the last two or three
months. And the last discussion I had wit i them was in the company of
Aboriginal representatives about two weeks ago. Two to three weeks
ago. I've not since, but I believe they're committed to the same principles
in this respect, that we are and that they wish to see an honourable
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package fashioned here. One that does justice for Aboriginal interests
but, at the same time, works. And so that is why I'm confident that the Bill
will pass through both houses.
J, You said on the last page of this statement that greater recognition will be
given to the value of regional and local negotiations. How will you
facilitate those?
PM: Well it depends on how we wish to develop them and what prospects of
success they would have. That is, whether or not regional agreements
can be made as is the case in Canada and other places. We're at
least leaving that opportunity open. In some very obvious and discrete
areas of the country such agreements might be made. Even though there
is a patchwork quilt of titles there are vent common threads to some of
these titles and, therefore it may be possible to enter into regional
agreements.
J: Are you confident that the legislation will actually get through this year, Mr
Keating?
PM: Well, I am Laura, yes. I think it will proceed this year and I think it's
important that it does.
J: Prime Minister, did you give any commitments to the Aboriginal
representatives on the level of the funding; for the land acquisition fund
and do you have any Idea of the ball park estimate on the compensation
package?
PM: No, I can't go to that. That's something that the Cabinet has to consider.
But it will be a substantial fund and it will b2e a revolving fund. That is, a
proportion of it will be capable, a proportion of Commonwealth
subventions will be capable of being sperit on land acquisition but a
portion will probably I say probably he reserved for a revolving fund
so that the earnings base of the fund becomes, over time, the proceeds of
the fund. It goes on in perpetuity. And, in such a way there would be a
reasonable chance of success of it becoming a major acquirer and holder
of Aboriginal property.
J: Mr Keating is the Commonwealth.... .( inaudlible).... compensation for the
extinguishing of native title even where states may not agree to the
Commonwealth legislation?.
PMV: No. If a state does not agree, a state has 1: 0o validate, but in validating it
has to pay compensation. You see, these leases are state leases. These
titles are state titles, not Commonwealth titles. The validations are to be
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done now with the Commonwealth legislative authority, by the states. But
if they are not in our scheme and cooperating then the compensation will
be met by them.
J: Will you be expecting Mr Court to come on board with this?
( inaudible)...
PM: Well, I spoke to him and I think he's coming over this week. But I have
had no indication from him that he believes that Crown title should be,
should fall to a native title claim. He doesn't believe that native title
should be issued over Crown land. He believes the only titles that
Aboriginal people should have should be statutory titles conferred on
them. He believes that a conferred right is fine, but an inherent right isn't.
Now, its pretty hard from my position to argue with that because it's
diametrically opposed to what Mabo stands for.
But, again, I think he's got to consider thi: 3 in terms of the land
management questions for his state. Because we've certainly considered
it for Western Australia. We've taken fully into account that much of this
variety of land is in Western Australia and that the interests of Western
Australian industry that is mining, commercial, pastoral need to be
taken into account and we have taken threm into account, though we have
not had a meaningful dialogue with the state government. But one
doesn't need a meaningful dialogue with t: he state government to
understand what some of its core interests are, so we've got them in
there. But, in having very meaningful discussions with the rest of the
states I'm pretty sure that what they regard as core interests, are anyway,
the core interests of any Western Australian government and Western
Australian people. So, I think the Western Australian community ought to
be assured that the Commonwealth has very much had in its mind, its
interest, in framing this legislation.
J: Is there a message for the Opposition, Mr Keating?
PM: Well, I think that the one message for the Opposition is that they have
now consistently failed to be part of any negotiation. A number of
business organisations invited the leader of the Opposition as long as ten
or eleven weeks ago to join the Government in this matter. No response
has come. In the meantime Mr Reith has been appointed to basically do
to the Mabo legislation what he thinks he was successfully able to do to
the four year parliamentary term referendums. Now, Mr Reith was one of
the architects of Fightback! and Fightback was a dismal political failure
and I think that his tactics on Mabo have been a dismal political failure,
too.
Ends.
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