TEL: 10. Jun. 93 16: 15 No. 018 P. 01/ 08
TRANSCRIPT OF THE PRIME MINISTER, THE HON P J KEATING, MP
INTERVIEW WITH PAUL LYNEHAM9 7.30 REPORT, MELBOURNE, 9 JUNE
1993 E& OE PROOF COPY
PL: Prime Minister, welcome again to the program.
PM: Thanks Paul.
PL When we get down to basics are we talking about a different attitude
towards Aboriginal Australia between, say yourself, and Premiers
Kennett and Court?
PM: I think so, yes that's right, yes I do. I think there is not the willingness
there ought to be to accept that the High Court has made a seminal
decision and It's the Governments of the Commonwealth and the
States to set up mechanisms to respond to the hearing and awarding of
Native Title in accordance with the decision of the High Court.
PL: Could it be that you are too far out in front of community opinion?
PM: No, it is not a matter of community opinion, It Is a matter of the law. The
High Court has said that there Is a Native Title In the common law and It
has existed since settlement in 1788, not In a sense, we will use the
word, discovered until June 1992, but existing from 1788. Now I would
like to say for the purpose of your viewers who are not certain what the
legal position Is, it doesn't mean that large parts of Australia, partlcuiariy
of the buiit up areas of Australia, the urban areas of Australia will be
subject to a native title ciaim. Where freehold title has been issued the
native title has been held to have been extinguished, where a lease hold
has been Issued, the native title In most cases, or in many cases has
been extinguished.
PLU So these enormnous claims we have seen in recent days, I mean the
entire ACT for example, that's a nonsense?
PM: A nonsense. It has got nothing to do with Mabo.
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PLU Anid not very helpful to you I would have thought?
PM: it's a tactic of some of the extreme elements of the Aboriginal
community, it has got nothing to do with Mabo, has no chance of
succeeding and as a sense.. this particular process.
PU Now you began these talks here today with some Premiers wanting
simply to, if you like, forget that Mabo had ever happened, extinguish
native title across the whole of Australia
PM: There was, if you like, an unwillingness on the part of some Premiers to
accept that the High Court has made a seminal decision to be less then,
if you like, accepting of the tact, or In fact to debate the High Court's
right to mae~ a decision about native title. Well of course this may be
Interesting for them, but of no Interest to me. The High Court has made
this decision, native title does exist and It Is now up to the Governments
to see that the methods are put in place to hear native title, to dispense
native title and to validate all the leases which are put into question.
PL: So, when the Western Australian Premier says that these key decisions
In our national life should be made by elected leaders, you say well
that's a nice Idea, but that's not the way It Is?
PM: No, I said to him today, we have got a constitution which Is made up of
an executive, a legislature, a judiciary and the judiciary, our High Court
makes decisions about these sorts of matters and it has made a
decision about native title. There is no appeal to that decision, there Is
no privy council and nor should there be and therefore the law of that
decision should be respected by all governments in Australia and his In
particular whether he likes it or not.
PIL: Last night, fairly late last night, you thought didn't you that you were
about to come pretty close to getting some sort of agreement here?
PM; I thought I was moving towards an agreement, yes.
PL: What sort of agreement did you have hopes of at that stage?
PM: One where the Commonwealth's said for its part it would validate all
leases that were Issued since 1975.
PL: The year of the Racial Discrimination Act?
PM: The year the Racial Discrimination Act was Introduced and I made what
I thought was a generous offer of the Commnwealth paying any
compensation arising from eighteen years of the Issue of that lease.
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PL: So whatever leases the States had issued you would pick Up the tab?
PM: We would pick up the tab which was an exceptionally I think generous
offer from the Commonwealth.
PU And what else was part of the plan?
PM: In return they had to agree to the establishment of a set of tribunals
under Commonwealth guidelines, but set up In the States to hear native
title claims and award native title and to adopt some principles on the
way through such as the protection of native tite and Its revival there
after; after a particular purpose had ceased.
PL: This system for hearing claims for native title, this could apply to future
leases? 6
PM: Future leases that is right.
PUL What went wrung last night?
PM: Premier Kennett unilaterally told the meeting about 10: 30 pm that he had
had enough of this, he was going to legislate unilaterally, that he had
advice that he could validate the leases by a decision of the Victorian
Parliament and that he would then legislate to dispense native title In
VIctorla and where that native title was Inconsistent with a commercial
purpose, he would extinguish the title.
PU: And where native title was found to be proved he would pay
compensation?
PM: He would pay compensation.
PL: But he doesn't expect to have to pay very much at all does he?
PM: No, because most of Victoria, the native title has been extinguished by
freehold title over the last..
PL: Being such a closely settled State.
PM: Yes, over the last one hundred and fifty years, there Is very little
unallenated crown land, other than state forest and national parks which
Is not true of Western Australia, It is not true of Queensland, so in a
sense his response was sort of a beggar my neighbor response, It
wasn't going to cost him anything like as much to choose this path as It
would have cost Queensland or Western Australia.
PL: Can he legally do this?
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PM: He has been advised so though Commonwealth legal advisers would
doubt this Is so and we have expressed those doubts In the document
we published a week or so ago which says that legislation In the
Commonwealth Parliament Is the only certain way of validating leases.
Now, It may well be that the States can validate leases, If they can,
good. They issued the leases, they Issued these grants of Interest in
land, not just leases, but grants of Interest In land over the last eighteen
year. They have been the land managers so If they can validate their
own leases and pay the compensation well, that Is not a problem for me.
I say good, If they can do that good.
PL: How did you react to Premier Kenriett's sudden flourish?
PM: I thought it was disruptive of the spirit of the discussion and again this ad
hoc apprcdabt to things, it Is not the way a matter like this, a national
matter should be dealt with. It ever there Is a decision handed down by
our most supreme court, our High Court about the indigenous people of
this country that requires a national response.
PL: And you were prepared then though to make some compromises this
morning weren't you?
PM: I proposed again a change to our document to Indicate that It would be
possible to agree to a package provided that the States understood that
the High Court has made an historic decision, the decision being that a
native title existed in common law, that It was not extinguished by the
acquisition of sovereignty In 1788, that survived sovereignty in 1788 and
that we had to establish the mechanism for tribunals to hear and
dispense native title. Premiers Court and Kennett would have no bar of
that and other Premiers who might have accepted that and some would
have found there was no point In them accepting it.
PU Premier Kennett says an agreement was possible here, but Paul Keating
wanted to do too much, to go too far, you wanted to solve the entire
Aboriginal question once and for all by linking everything on to the Mabo
Issue.
PM: I don't doubt for a moment that Premier Kennett sees attractions in that
glib line, but that Is not true. He and Premier Court wouldn't embrace
even the primary remedial policy changes to give effect to the core of
the Mabo decision, not the add ons or the embroidery or anything on the
edge of it, the core Issue.
PL: We now have Victoria, New South Wales and I gather Queensiand at
least planning their own legislation now to validate those leases between
1975 and now. You can understand they have got to give certainty to
business don't they?
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PM: Absolutely and it they can by the passage of legislation through their
houses ot Pariamnent do that and pick up the compensation.
PL That you would have otherwise been prepared to..
PM: No, but you have got to understand that the cost of compensation to
VIctoria will be minuscule compared to the cost of compensation to
Western Australia or Queensland.
PL So, we have been here now for the best part of two days, you have
worked right through into the night, we have got effectively what
nowhere?
PM: Let me say this. We have as a Commonwealth government as a
mlnstet-Fommittee of the Commonwealth been at work now for a
couple Of months on this. We produced a highly Informative document
which the States have had a copy of now for over a week, we refined
that to 33 key proposals and then refined It down further to what we call
the core issues yesterday and today. The States have had their own
legal advice. The Council of Australian Governments Is an executive
body, when a Premier comes to this body they are there to make
decisions, not to have studies or to go back and consult but to make
decisions.
PU* They have Prime Minister, they have said no.
PM: They have made a decision, they wouldn't make decisions to embrace
the core proposals to deal with the High Court decision.
PL: OK, so we have this executive body meeting, the big white chiefs of
Australia in a pow wow, what message does this now send to Aboriginal
Australians?
PM: I think Premiers Court and Kennett have to got to explain to the
Aboriginal community why native title as a concept so rankies of them,
why they are not prepared to hear native title claims and have them
dispensed and I think they have got to explain to the business
community why they have refused a generous Commonwealth offer to
validate the titles and pay the compensation.
PL: And what message does it send to investors If you were sitting In Tokyo
right now wondering whether to put $ 100 million Into a mine In Australia?
PM: That Is a different issue. They can Issue from now on valid grants of
Interest In land providing they follow two key points of procedural
fairness and compensation, they can Issue from here on valid Interests
of grants of land. But each interest in the land extinguishes the native
TEL:
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title unless we provide for a revival of the title when the economic
purpose Is finished.
PL So I want to develop a midne. NOe then got to advertise, the State
government has got to advertise the potential native title of it?
PM: Yes, it has got to avertise. If there Is an area of land that the State
wishes to develop It has to advise potential native title holders or the
Aboriginal people of the region or maybe Land Councils that it seeks to
exercise an Instrument over a grant or a grant of Interest In particular
land.
PLU How long will this hold me up for? How long does this hold up the
proce-s?
PM: I don't think It Is effectively a holdling up process at all because even if it
takes a number of years for a native title claim to be heard and
dispensed it doesn't stop the valid Issue of the lease or the Interest,
PU: But I don't know as a business person what compensation I am up for
down the track do I?
PMIV: In the legislation that I was proposing at this meeting we would have
guidelines for the compensation so a business would have an Idea of
what the cost would be further down the track. The key point Is Paul
that the States can now Issue a valid lease, a valid grant of interest in
land.
PRL: Have you perhaps pumped up average expectations too high. I mean
there will be a lot of disappointment out there?
PM: It Is not only me pumping it up. You have got to understand this. This Is
something I have said to thorn on a number of occasions and I'll say to
you that this decision was not a decision of the Commonwealth
government, it was a decision of the High Court of Australia....
PL: But you're linking It with reconciliation.
PM: In a matter between Merlam people and the State of Queensland. The
High Court held In favour of the Menamr people, and in doing so created
a historic decision, it is that we are responding to. So, it Is not a matter
of the Commonwealth government-building up expectations, It Is simply
a matter of law which has to be dealt with.
PL: And how will you go forth from here?
PM: We will I think, as a result of the day, we'll consider our position and see
where we think how best we should respond.
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U. 16: 5 No. 018 P. 07/ 08
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PL There's talk of drafting legislation.
PM: Well we'd be drafting legislation anyway, because we haven't had a
frame work legislation within which these State tribunals could operate.
So, we will go ahead and do that anyway. but again we will be
considering our position. But can I also say that the meeting, the
Council of Australian Governments, considered many other matters,
reform in water, electricity, gas, micro-economic reform and other
mnatters between us, and tha was quite a successful feature of the
meeting. But the most Important one could niot be agreed upon. While it
is the resolution of the Impact of the High Court decision In respect of
native title.
PL: You said s~ eral times that you thought that the Mabo decision was a
great opportunity for Australa, are you still of that view?
PM: Yes, because it Ist he classic evener up, It Isth e thing that gives to
Aboriginal Australians an Interest In land which-has been theirs under
the common law since settlement. It has a wholly different character to
statutory land rights, land given by statute from a Parliament to an
Aboriginal community. It has more Inherent dignity In the sense that it is
available to a native type of hold, and as such It means that this
possession which came with the settlement and the concept of terra
nuilius, the land of no one, has been over turned by the High Court and
Australians community can go forward together on the basis of the
quality of access and availability to land.
PLU Finally, comments by people like Tim Fischer, that this is the guilt
Industry, that this was done by vastly distant past generations, not our
generation, we shouldn't bear the cross.
PM: Well that's wrong, that's a prejudicial view, and it is a wrong view, it has
nothing to do with guilt, it Is a matter of law. In Captain Cook's
Instructions he was told that In establishing a settlement In Australia that
he should proceed with the consent of the native people. So, even back
then the consent of the native people was an Issue. Of course In New
Zealand there was the treaty of Waitangi, whereupon the Maori and the
Crown came to a decision about the development of that country and
their particular rights. This didn't happen In Australia, we had this
concept of the land of no one which the High Court now overturned.
PL: And you will be back with the Premiers again in the next couple of
months, will you, to keep trying?
PM: Well we have got a Premiers Conference, a fi-nancial Premiers
conference meeting In July but at each meeting we are not prevented
rm discussing any matter financial or otherwise. But they have got to
I~ iv 1U. jufn 5 10; 1D ra. Vio r. voivo
show a willingness to accept the decision of the most supreme of our
Courts, the High Court.
PL Prime Minister, thak for your time.
PM: Thank you.
ENDS