The Prime Minister, Paul Keating, came face to face with indigenous people in New Zealand _ literally. It was part of the traditional Maori greeting.
He is also coming face to face with the question of native land title in Australia. While in New Zealand at the weekend he said legislation would underpin the Mabo decision, but in co-operation with the states.
Co-operation with the states is not only the courteous thing to do; it is in fact essential. Legally and constitutionally, the Commonwealth cannot act alone in dealing with Mabo, at least not satisfactorily.
Keating said, “”The Government of Australia and the governments of the states are seeking to put into a body of law a native title for the indigenous peoples of Australia.”
Those governments meet next month in the Council of Australian Governments, and will presumably start the ball rolling.
At first blush, it would seem the Commonwealth has the constitutional power to deal with the uncertainties caused by Mabo. It was given power in the 1967 referendum to make laws “”with respect to the people of any race sq(including Aboriginal race) for whom it is deemed necessary to make special laws”. However, things are not as simple as that, because of the way the High Court decided the Mabo case.
It said native title existed and had always existed under common law. It survived claims by Captain Phillip in 1788 and subsequently in other Australian colonies for sovereignty over the whole continent. However, the sovereign colonial governments and subsequent sovereign state and federal governments could take it away. And, indeed, they did take it away. And that extinguished the native title. This mean that all existing freehold titles and long-leasehold titles like the ACT are all secure against claims for native title.
The High Court made it clear, however, that further taking away of native title was not on. The states could not do it because it would be a breach of the Federal Racial Discrimination Act. It said, in this example, that the state of Queensland could not take away Eddie Mabo’s Murray Island under some legislative scheme for the “”advancement” of indigenous people. Nor, it was implied, could the Federal Government take away native title without paying compensation because the Commonwealth’s power is limited to acquiring property only on just terms.
The court did not make it clear what native title exactly meant. Did it include minerals, for example? How did a group prove they had native title? What were the boundaries? And so on. In Mabo itself, these things were relatively easy because the court was dealing with an island.
The only ways of bringing certainty back would be to run a few more test cases to the courts (and that is already happening), or to replace native title under common law with a new native title under legislation, perhaps after setting up a tribunal to hear claims.
Mr Keating appears to favour the latter. In New Zealand he spoke about putting native title into “”a body of law”. This presents a grave difficulty. The Commonwealth can redefine native title, set up a tribunal, listen to claims and make land available, but still come unstuck.
White Australia often sees Aboriginal claims for land right monolithically. It sees settlement in terms of handing over land to “”the Aborigines”. It is not as simple as this. Different tribes claim sometimes overlapping land. Different tribes have links with the same land with differing degrees of affinity. And so on.
Thus when the new land tribunal awards some land under “”native title” to a group of Aborigines, it could well be that another groups says, “”Hang on a minute, you have awarded our land to someone else. You and your statutory tribunal have taken away our common-law native title without giving us just compensation as required by the Constitution.” And off to the High Court they go.
This is not hypothetical. After the Commonwealth passed the Northern Territory Land Rights Act, there were examples of conflicting claims for the same land. Then there was no Mabo decision to contend with. Opposing tribes slugged it out in court or the Land Commissioner bounded solely by the four corners of the Land Rights Act. Post-Mabo, however, the tribe that loses under any new legislation can have another bite under the Mabo doctrine and the just-terms clause of the Constitution. They might not get the land; but they would get compensation.
Further, people who do not get what they think is enough under a Commonwealth-only statutory scheme could still file for Mabo-just-terms compensation.
Only the states can convert common-law native title to statutory title without paying compensation. And even then, they can only do it if it is not contrary to the Race Discrimination Act. That Act might have to be amended to say that it is not an act of discrimination to convert common-law native title to statutory title, even if one tribe missed out in favour of another, and that it is not discrimination for a once-and-for-all statutory settlement, even if other areas of land which indigenous groups want are not granted.
It was pertinent that Keating looked at the issue in New Zealand. It faced a similar issue. There, the Treaty of Waitangi 1847 provided that Maoris were entitled to keep their lands and treasures. It is a fundamental law that to some extent transcends what the Parliament may or may not do. And with changing political circumstances and awareness, those claims had to be met. Like the Treaty of Waitangi, Mabo and the just-terms clause restrict what Federal Parliament may and may not do.
Legally and constitutionally, Keating needs the states to effect a settlement. Politically, he certainly does.