The Australian Government should go as far as possible in meeting sweeping Aboriginal demands over Mabo because it will only face litigation if it does not, according to departmental advice.
The departmental advice for ministers on the Government’s Mabo committee was obtained by The Canberra Times yesterday. It comes after Aboriginal groups met the Prime Minister, Paul Keating, on Tuesday and presented a list of demands. They were not made public at the time.
The demands include a veto over any new grants (by sale or lease) of Crown land in Australia and recognition in the Constitution of Aboriginal prior ownership.
The group meeting Mr Keating sought immediate Federal legislation to recognise and affirm Aboriginal and Islander rights and to set up a tribunal to issue declarations of title on the grounds of common law, historical association or needs.
The tribunal would provide simple procedures to establish Aboriginal title.
(The Mabo case itself took 10 years before the courts before the High Court ruled that indigenous title existed in Murray Island and that the Queensland Government could not legislate to take it away because it would be a breach of the Racial Discrimination Act 1975.)
The group demanded new constitutional arrangements. It wanted the Commonwealth to acknowledge there could be no reconciliation without positive acknowledgment of prior Aboriginal and Islander “”ownership of this nation” in the Constitution.
It wanted a veto over new grants of Crown land, vesting of Aboriginal reserves and a “”settlement process” involving the Commonwealth and Aboriginal and Islander representatives to discuss funding, compensation, new land councils, ownership of cultural and intellectual property and human remains and self-government.
In return Aboriginal people would validate mineral titles granted since 1975 that might otherwise be invalid due to the Racial Discrimination Act subject to protection of sacred sites, compensation for disturbance, remuneration for the value of the minerals and environmental protection.
The preliminary inter-departmental committee advice said the points were “”to some degree and ambit claim” and were “”negotiable”, however, veto of land rights would probably be a sticking point.
The Mabo committee which received the advice is chaired by the Prime Minister and includes the ministers responsible for aboriginal affairs and resources.
The advice said that primary, over-riding Commonwealth legislation had the “”attraction of the Commonwealth being seen to take a leadership role”.
It would be legally possible under the Constitution’s race power, subject to the provision of just terms for any property being acquired, such as state or territory interests in Crown land.
(This is a new element in the Mabo debate. If the Commonwealth steps in the states could make demands for compensation for property turned over to Aborigines. This issue almost caused the Commonwealth to come unstuck in the Tasmanian Dams case, with some judges saying the Commonwealth did not provide enough compensation to Tasmania.)
The advice said the tribunal would have to be established as a court because of the separation of powers doctrine.
It said, “”A uniform nation-wide regime has attractions in terms of certainty.” And the “”alternative of negotiating with states and territories would itself be difficult”.
It posed some fall-back positions. The Commonwealth could legislate a model in its jurisdiction and the states would mirror it in theirs. There could be a Commonwealth-state package. Commonwealth legislation could come into effect as each state agreed; failure to agree would result in no Commonwealth contribution to compensation over validating mining leases. The Commonwealth cold set a minimum standard of legislation for the states.
The advice said that all the fall-back positions would have difficulties with states that asserted their primacy in land management.
It said more clarity should be sought on what “”affirmation”, “”recognition” and “”protection” of Aboriginal title meant.
The advice agreed with the principle of not extinguishing native title to the extent possible, but questioned how far back it should go, what native title survived a freehold grant (the High Court made it pretty plain that none did), what native title survived leasehold.
On veto, it said there was a problem with what to do with Crown land while claims of native title-holders were sorted out. It was concerned with the claim of vesting Aboriginal reserves because the people in them might not be the native title-holders and there would be some state sensitivity.
The advice said a tribunal was a good idea, but it was hotly opposed by some states and dragged the Commonwealth into land management in the states.
It agreed to the sacred-sites demand, but queries whether total protection without the present ministerial discretion was suitable.
It called the “”settlement process” ambitious and well beyond the Mabo issues. It said there were “”bound to be fish hooks in some of the items e.g. “”ownership” of resources.
It said the constitutional change was imprecise. It said it was “”a major political judgment whether to commit publicly” to constitutional change acknowledging prior ownership.
That judgment is backed up by the secrecy and imprecision surrounding the whole process.