We need to have courage to save the principles of Mabo and Wik and ensure justice for all says Noel Pearson in this Whitlam Lecture.
I’ve just read the John Ralston Saul book ”The Unconscious Civilisation”[1] and it’s really invigorated me about some reservations and problems I’ve had regarding where we are at as a country and where we might be going. It emphasizes the need for people, particularly on the left side of politics, to spend a lot of time debating and talking about issues that we sometimes take for granted. This book is as challenging and exciting as Robert Hughes’ thought provoking, “The Culture Of Complaint”[2] . Both challenge us to be intellectually rigorous and to reject popular or fashionable ideologies.
Can I say that more conscious civilisation as envisaged by Ralston Saul might be the civilisation that sustains executive salaries a little more evenly rather than as disproportionately as at present whilst ordinary families get $10 more per week. There could be no more graphic an illustration of how unconscious our civilisation might be becoming.
I’m extremely privileged. I never had to wear sandshoes out in the way that Geoff Clarke and many other people had to do over a long history of struggle for indigenous rights. I have been carried by an easy slipstream created by the harder struggles of countless indigenous people, indeed countless other Australians.
I want to express my appreciation for those who made this possible. The education which many indigenous people in this country now enjoy is a product of the actions of the Whitlam Government in the 1970’s.
I never saw a pay cheque that my father held in his hands that was more than $85.00. Maybe he did get more wages when I went away to college. But he used to always send me $10 in his letters. There was a practice at boarding school to sniff the letter because we believed you could smell the money inside. Nevertheless, my father’s contributions to my education, valued as they were, obviously could never have sustained my very privileged passage through secondary school and university. Without the great support mechanism of free education pout in place by the Whitlam Labor Government I would not Be in the position that I am in today.
I also want to take this opportunity, because, I have not had the opportunity in the past five years, to than Ron Castan QC who was Counsel in the Mabo Case. I’m obviously a great fan of Ron Castan, and in my quiet moments I always marvel at the way in which a motley group of Jewish lawyers and Torres Strait Islander land rights activists were able to struggle though ten years of litigation and secure the dismantlement of the terrible lie of Terra Nullius.
Finally in this introduction let me say thanks to Margaret and the Wurundjeri people for their welcome here this evening. It is important for all Australians to consider that in the shadows of a metropolis such as this, a glorious metropolis of wealth and privilege and opportunity, there still exist those who are the traditional owners of this country.
Mabo and the native title legislation offer the prospect for some justice to be accorded to them. It seems to me that we can achieve justice for indigenous groups in metropolitan Australia as elsewhere. They have been the victims of amongst the most savage aspects of the colonial invasion here in Australia. We have within our right, the mechanisms and the apparatus and the principals to put some balance of justice into place for them.
In February last year I was extremely troubled when I saw the conservative election campaign “For All Of Us”. I had in fact been troubled for some time because, having been excited at the positive leadership shown by Prime Minister Paul Keating over a sustained period and his unapologetic, uncompromising defence of the Mabo position and his courageous advocacy for the cause of reconciliation, I always thought in my quieter moments that it wasn’t always going to be this good.
I always wondered whether the backlash on reconciliation and native title would be the foundation of an election campaign. It never became an exclusive part of the 1996 campaign by the conservatives but Mabo for me was a palpable underlying issue in that campaign. It really crystallised for me when I saw the slogan “For All Of Us”. Because that slogan invited the question, if the new Government was to be a government “For All Of Us” , for whom was the previous Government?
Clearly if the previous Government could be coloured with anything it could be coloured with the APEC mob, the Asian mob, the Aboriginal mob, the union mob. Somehow this campaign played upon a sense of malice in the community. This was that sense that perhaps other people were getting a better deal than we were and the Aboriginal people were living it up at the expense of the great mainstream of Australia.
It hit me with a sizeable force wen I saw that campaign because I knew that “For All Of Us” didn’t mean those people of the margins. “For All Of Us” certainly didn’t include those who supported the Mabo principles.
One thing that I’m extremely concerned about as an Australian, particularly given my reading of the Ralson Saul book, is the importance of disinterest and the dangers of ideology. To be able to identify what we think is the public good for Australia we have to understand the importance of having a reasonable measure of disinterest in the way we contribute to public affairs and we must always doubt ideology.
The other important point that I am taking from Ralston Saul’s analysis of predicament, is the importance of democracy and individualism. It seems to me what will be particularly challenging for us on the left side of politics in the labour movement, and indeed in the struggle for indigenous rights, is how do we as collectives and organisations that stress purity, ensure both democracy and individualism?
John Ralston Saul’s book is a revelation about the importance of individualism. Not the selfish individualism of the free market but individualism that has sufficient doubt about ideology. An individualism that is empowering. Paul Keating said to me – and it was a revelation that to me was extremely liberating – “mate, we both belong to tribes, but at the end of the day I’ll tell you this, you have to make your own mind up.” One of the problems for us in the labour movement and the Aboriginal land rights movement, is that individualism has been given a certain sickly interpretation. The individualism that is championed by the conservative think tanks is an individualism that we reject. This is that individuals in our society who are powerless should be left powerless and open to exploitation. That’s the think tank version of individualism. This interpretation justifies leaving traditional owners unprotected by Land Councils without the resources to properly defend their legal rights and open to exploitation by the corporations that are seeing to deal with their land.
It seems to me that in the conservative ideology against trade unionism and against land rights organisations this type of individualism that is preached about is indeed calculated to leave our people defenceless and powerless.
The importance of unity is not to be questioned. Nevertheless we need critics and we need dissension in our community and in our organisations. If the Aboriginal land rights movement, in particular, needs anything it needs criticism and dissension that is constructive, that is forward looking, that is about de-constructing and again rebuilding. That’s the great challenge. It’s a great challenge about maintaining community and maintaining collective bargaining power without descending into ideology and anti-democracy.
The labour movement’s responsibility is indeed great in relation to the public good. I’m one of those who Christianity converted to the notion of the public good. My father said to me “there’s nothing more to life other than serving God and serving your God and man.” I’m afraid that I’ve been delinquent in relation to my fathers prescription. However, I’ve always held true to the notion that whilst fighting for our sectional interests we should, as Australians, find a way to have sufficient disinterest in order to be able to fights for the collective good.
Can I remind you of what Gough Whitlam said about the labour movement’s particular responsibility for fighting for the public good when he said, “The function of education is integral to unionism and unionism is essential for the protection of democratic ideals, the protection of rights – not just as unionists but of all sections of society subject to disadvantage, discrimination or exploitation”.
The labour movement in particular has a responsibility to fight for social justice and to champion the concept of social justice at a time in our country when that concept is hastily beating an intellectual retreat.
It seems to me the labour movement has a responsibility to fight for and to empower the disadvantaged and I’m very proud to be part of the Trade Union Education Foundation which is a forum to talk about and think about these things.
Now let me turn to Mabo. In my belief, the 3rd June, 1992, was the date of Australia’s redemption.
In my more depressing moments I feel that there are only two Australians who believe that. Prior to Mabo the country had clung to something that was in fact not a rejection of the co-existence of the twin concepts of common law and native title. That co-existence was already well established under the common law and had indeed been applied in jurisdictions such as the United States in 1823; New Zealand in 1859 and later in Canada.
It wasn’t a rejection of the notion of communal native title to land that was applied in Australia. Instead, in the application of that concept here in Australia, the legal system had insisted that Aboriginal people were so low in the scale of social organisation that they did not warrant the enjoyment of those common law rights.
If you go back in our history, as Professor Henry Reynolds has done in his work “The Law of the Land”[3], there is no lack of knowledge about the common law concept of native title. But what contributed to the lie of Terra Nullius and to the fact that this prevailed right up until June 1992, was the assumption that Aboriginal people had the legal status essentially equivalent to fauna – roaming over the landscape and having no concept of ownership of the land. It was that racist assumption that underlay the lie of Terra Nullius.
Mabo was no more than a rejection by High Court of Australia of racial discrimination. Justice Brennan said in that case; “The common law cannot be, and cannot be seen to be, frozen in an age of racial discrimination.” So this decision rid Australia of the notion that somehow Aboriginal people, of all of the indigenous peoples across the planet, should not be afforded the protection and recognition of the common law. Finally the High Court said; “the exhumed inhumanity of Australia’s indigenous peoples is a racism which our law will no longer countenance.”
In my view the High Court was presented at this very late stage of our history with the prospect of having to return to the basic assumption that Aboriginal people were humans who were entitled to equal protection of their property rights.
It was very late in the day when we posed extremely difficult questions for the Court to come to terms with. The Court laid out a very simple prescription for the country. Basically the Court said that in 1788 when the British Crown applied sovereignty over the country, the whole country was covered by native title.
Aboriginal people were the subjects of the Crown and they were the largest property holders who were subject of the Crown. What happened, according to the high Court’s Mabo decision, was that through our history we have had a parcel by parcel process of extinguishment of Aboriginal title. In 1992 the High Court said in effect; There are these original rights and there are these accumulated rights. These accumulated rights cannot now be overtuned. But there may be remaining land where indigenous people are entitled to the recognition of their original title and there may indeed be tenures where native title can co-exist with the accumulated right of the colonies.
The High Court put forward a pretty simple lesson to all of us in the Australian community.
The Hight Court said to White Australians – have to abandon the fantasy of Terra Nullis. The Aboriginal people were humans and they still are humans. They were here and they still are here.
And the High Court turned to the Aboriginal Community and said – The white people have accumulated rights over this colonial history and they are never going to return to England.
I have to tried to find a better way of articulating a compromised but, there could be no more proper a compromise than what is set out by the High Court in its Mabo decision. It accommodates the reality of the original ownership. It also accommodates the reality of our history. It seems to me that the Mabo decision was a fair accommodation of this issue of long standing grievance and injustice in relation to the land.
The Keating Government’s decision to give the Mabo decision statutory protection and to establish procedures to ensure that remaining native title was not lost to indigenous people by arbitrary acts of hostile State and Territory Government’s was an important act of fidelity in relation to this compromise. It was an important act of fidelity on behalf of the Australian community. It means that at this stage in this country’s colonial history we are stopping the further encroachment into remaining indigenous title and from now on we are going to negotiate in relation to any alienation or use of native title land.
Of course the Native Title Act has had a very difficult time over three and a half years. As all of those who have worked with that legislation know that difficulty has primarily been founded on the fact that the grieving process about the Mabo decision in States and Territory Government’s was an important act of fidelity in relation to this compromise. It was an important act of fidelity on behalf of the Australian community. It means that at this stage in this country’s colonial history we are stopping the further encroachment into remaining indigenous title and from now on we are going to negotiate in relation to any alienation or use of native title land.
Of course the Native Title Act has had a very difficult time over three and a half years. As all of those who have worked with that legislation know that difficulty has primarily been founded on the fact that the grieving process about the Mabo decision in States and Territory Government circles and some industry circles has not yet finished.
There is still a yearning for the easy days of Terra Nullius. There is still a yearning to return to the notion that the Aboriginal people did not own land in the first place and Aboriginal people should not be entitled to recover title to any remaining land here in Australia.
I think however, despite all of the depression we might suffer in relation to the present Government’s treatment of the issue of native title, that the words of Paul Keating at the end of the Federal election campaign last year still apply.
He said at the time, you might recall that; “the Labour Government has established standards that will not easily go away.” In my opinion, John Howard is stuck with the standards that have been set by the former Labor Government in the native title legislation.
I have a basic view that there can be no retreat from the principles that were negotiated on behalf of the Australia people with the Aboriginal community. There can be no retreat from that, and there will be no retreat from that, and I believe that John Howard fundamentally knows that.
The great difficulty the Federal Government will have in doing anything other than respecting native title on pastoral leases is not just the political difficulty but legal ones. The Racial Discrimination Act was put into place as part of Australia’s commitment to racial equality and it has proven to be the strongest protection for native title that we have in our constitutional law.
Without the enactment of the Racial Discrimination Act in the last stags of the Whitlam Government there would be no Mabo decision. This was proven in 1985 when in the dead of night, almost without any public knowledge, Joh Bjelke-Peterson’s Queensland Government passed a small piece of legislation that effectively attempted to outlaw the Mabo legislation. That law sought to say that the State of Queensland had not intended in 1879 to extinguish native title in the Murray Islands and in 1985 the State of Queensland did so now intend.
If that law had succeeded it would have killed the Mabo litigation stone dead right there. It required Eddie Mabo and his lawyers to test in the High Court whether Joh Bjelke-Peterson’s law was constitutional or not? In the first Mabo decision in 1988 the High court ruled that the Queensland law was in breach of the Racial Discrimination Act and was therefore unlawful. The Mabo litigation was therefore able to proceed onwards.
The Racial Discrimination Act has operated to save native title at every turn when conservative governments have attempted to wipe it out. The Racial Discrimination Act was important in the protection of native title when the Court Government attempted wholesale extinguishment in the State of Western Australia in 1993. The Racial discrimination Act is a fundamental protection for the Mob decision. Without it we can put Mabo in the dust bin tomorrow.
However, the great short-coming that we have in the constitutional guarantee of racial equality in Australia is the fact that the Racial Discrimination Act is a statute of the Commonwealth Parliament and is amenable to amendment, to appeal and for implied override. That is our great fear. An subsequent Act of the Commonwealth Parliament can indeed override the principles of the Racial Discrimination Act.
Because this Act provides a guarantee of property rights to be treated in the same way for all people in this country regardless of race. The Racial Discrimination Act says that you can extinguish native title if you extinguish every body else’s title as well.
State and Territory Parliaments all have the constitutional power to extinguish property rights of citizens subject to the constitutional power to extinguish property rights of citizens subject to the constitutional requirement that is to be done on the same just terms. However, the Racial Discrimination Act requires of them that any such act of extinguishment needs to apply to all citizens regardless of race. As you know most of the proposals for extinguishment are aimed at treating native title property rights differently from, and less favourable than, other forms of tenure.
The centre of the debate in relation to Wik over the coming months will be the Racial Discrimination Act. The election policy of the Howard Government in 1996 prior to it’s election committed this Government to the following:
- the fact of native title;
- the constitutional protection given to all property interests;
- the prohibition of racially discriminatory measures and laws;
- recognition of the special relationship between indigenous people and land which is at the core of indigenous culture and;
- respect for the provisions of the Racial Discrimination Act.
There have been a lot of legal words since then about whether the provisions of the International Convention on Racial Discrimination can still be honoured whilst Parliament tinkers with the working of the Racial Discrimination Act. The Government’s argument in recent months has been that they can amend the Racial Discrimination Act but still maintain fidelity with the principles of the Convention.
However in May last year the Prime Minister released a discussion paper on native title which unequivocally stated as follows:
“That the Government is of the view that to legislate to extinguish any native title on pastoral leases, or to allow the States and Territories to do so, would be seen a inconsistent with it’s election commitment.”
That is surely one of the promises to which Australians of goodwill, who hold Mabo and Wik as civilised moments in our colonial history, will keep the Prime Minister honest.
I have a strong personal feeling about the need to save native title in relation to pastoral leases because I had the great privilege of working with a Wik man known very well to Gough Whitlam – John Koowarta.
John Koowarta obtained funds, partially through the Federal Government, to purchase a cattle station in Central Cape York Penisnsula in the late 1970’s. The owner of the station was willing to sell the property to him but the Queensland Government intervened to prohibit the sale. They refused to allow the transfer of the pastoral leas.
I met John Koowarta in the early 1990’s very late in his tragic life when he was still campaigning in relation to the Archer Bend, or the former Archer Bend, pastoral lease. I say “former” because before he won his victory in the Hight Court the Queensland Government had turned Archer Bend into the National Park it is today – therefore denying John Koowarta any practical benefit from his eventual legal victory.
John Koowarta led a long campaign against successive Queensland Governments in relation to the struggle of his Wik people for recovery of the Archer Bend land. He died without justice and without his title. However, the Wik decision in the case subsequently taken by his people has established the possibility that the Archer Bend National Park can now be claimed by the Wik people and their coexisting title in relation to that Park can at last now be recognised.
John Koowarta fought a long and lonely struggle to ensure that racial discrimination was outlawed in our country and that this would become part of the fundamental human rights that we now take for granted. But he died with out any personal justice.
Eddie Mabo fought a long and lonely struggle against the lie of Terra Nullius and he died before justice was delivered. Right across the country I hear stories of Land Councils gamely trying to recover land in time for many old people for whom justice remains outstanding.
Let me say that we now, I believe, have the opportunity to ensure that justice is delivered. It does not get much better than Wik. The civilised settlements of colonial disputes in relation to land do not get much better than Wik.
We have all of the tolls available to us to be perhaps the first country on the face of the planet to come to terms with historical reason in relations to land in as comprehensive and as fair a manner that our democratic legal system can muster.
I speak on my own behalf when I express my belief that we can settle this land rights issue. This country can soon put to rest this question of land rights, that has for so long prevailed upon our minds. We now have, in my view, the appropriate legal apparatus to strike the correct compromise. One that acknowledges the original and ongoing entitlement of the indigenous peoples and acknowledges the realities of our history and our accumulated rights and our accumulated associations with this country.
With fidelity and reasonableness in relation to the principles which have now been established under the leadership of the High Court, w have all of the ingredients to settle the land rights issue in extremely due course.
The one outstanding challenge in my view that remains beyond Mabo and Wik is justice for the indigenous of Tasmania.
The history of the treatment of this indigenous group on the face of our continent is the history of that treatment utterly underlined. The words of Justices Dean and Gaudron in the Mabo case that this colonial history constituted the darkest aspect of the country’s history are right. It seems to me that the story of Tasmania is the most tragic.
Justice for the indigenous people of that State remains outstanding and will remain an outstanding issue for us to settle beyond the principles of Mabo and Wik. I would urge those in the land rights movement and the labour movement and all of those who hope for the day when we can say the we dealt with land rights and we made a just settlement to turn your attention to , and support, the struggle of the people on that island.
I don’t believe that the struggle for indigenous justice in relation to land needs to be an incremental struggle – a struggle to be continued by the next generation. I believe that we have the means within our grasp to properly attend to these issues if we do it in an ungrudging and in reasonalbe way. Reasonableness is required of us given that the principles in Wik demand mutual security of entitlement for both those non-indigenous people and those indigenous people on whose country these tenures exist.
I think that Wik probably causes the greatest anxiety because it urges coexistence and sharing of the land. If we can emerge from what has been an ugly debate about the correctness of Wik, if we can emerge with a system and some principles for sharing the country, particularly in remote parts of the country where pastoral leases and Aboriginal people exist, it seems to me that we will indeed hat will e unmatched by any society trying to come to terms with historical grievances in relation to land.
Let me return to this notion of the public good. I have a great belief that Wik and Mabo give opportunities for the whole country. Australia has spent two hundred and four troubled years denying the reality of the original ownership of the indigenous people of this country. Mabo has finally provided with us an opportunity to deal with that issue with honesty and with appropriate grace.
There will be those who say that the political cost that we have borne in relation to native title and Mabo is no longer a cost that we should be prepared to pay. The resentment in relation to Aboriginal people that is so pervasive around our community may even lead us to believe that Mabo should be abandoned. I urge all of those who harbour those doubts to harden your resolve. I ask you to harden your resolve because these opportunities come only once in a nation’s life time.
They don’t come with every generation. They don’t come every thirty, forty or fifty years. This kind of opportunity is either seized with goodwill and with faith or it is rejected. We will reject this opportunity, it seems to me, at our cost.
This is because if there is infidelity to this belated justice by the Australian Parliament on behalf of the Australian people then this the country will be condemned to interminable historical conflict. If fidelity is compromised there can be no national reconciliation.
I urge those in the Australian community who believe that Mabo and Wik are important achievements of our civilisation to have the courage to ensure that we save those principles and that we ensure justice for all.
Thank you.
The Whitlam Lecture Series 1997. Second Lecture given by Noel Pearson, Aboriginal Land Rights – The Next Stage, Thursday 24th April 1997, Storey Hall RMIT – Melbourne
[1] John Ralston Saul “The Unconscious Civilisation” Penguin Books, 1997
[2] Robert Hughes “The Culture Of Complaint” Warner Books New York, 1994
[3] Professor Henry Reynolds “The Law of the Land” Penguin Books, 1992
