For a long time New Zealand appeared to be substantially ahead and better than Australia at dealing with those occupying the land before European settlement. That changed last week with the offer by the New Zealand Government to settle all outstanding Maori claims for $NZ1 billion ($A825 million). The offer contained a fundamental inconsistency.
The New Zealand Minister for Justice, Doug Graham, said on one hand that the Government wanted a “”full and final” and “”honourable” settlement. On the other hand, he said it was a “”take-it-or-leave-it” package.
But surelu, a settlement can hardly be honourable if it is not negotiated and genuinely consented to by both sides. A settlement can hardly be “”full” if one side has pre-determined its upper limit.
Until the Mabo case in 1992, Australia’s treatment of prior occupiers’ land claims was way behind New Zealand. Very simply, despite the overwhelming moral and legal force of the 1967 referendum result, successive federal Governments did nothing to deal with Aboriginal claims for land rights, with the exception of the Fraser Government’s grant of land rights in the Northern Territory.
The Hawke Government reneged on its pre-1983 promise for national land rights legislation.
On the other hand, New Zealand had passed the Treaty of Waitangi Act in 1975 which set up the Waitangi Tribunal to investigate Maori claims against the Crown from 1975 on and in 1985 extended it to deal with older claims. As a result some 300 Maori claims totalling about $90 billion are before the tribunal.
Clearly the Government could not meet that if all were substantiated. It would have to legislate to reduce the total or face a budgetary crisis. Perhaps this is the cause of last week’s offer.
So while New Zealand was recognising claims and dealing with them since 1975, Australia was doing very little, except in the Northern Territory and South Australia.
Now the picture is reversed. New Zealand is busy back-pedalling while Australia has moved forward dramatically in the past two years with the Native Title Act and the Aboriginal land fund legislation.
However, before we start patting ourselves on the back for the recent change and before New Zealand pats itself on the back for being ahead of Australia for so long, it is worth looking at why each country progressed when it did.
Here I am going to suggest something quite heretical in these days of political correctness. Part of the reason for progress was not general decency and altruism, but because it was forced on the governments by legal and constitutional requirements, and that those legal and constitutional requirements arose partly out of British policy and law. The British authorities last century were appalled at the way the colonial settlers were treating native peoples in both countries. They did not do enough, but they did some things which helped later.
In New Zealand’s case, Britain negotiated the Treaty of Waitangi 1847 which nominally gave Maoris protection under the Crown and protection for their lands, fishing and hunting rights in return for sovereignty. This became the foundation to later land and other claims. In Australia’s case, British common law gave foundation to the Mabo judgment.
It was long the policy of the British Colonial Office and long the principle of the common law that the land and customs of indigenous people had to be respected. Of course, throughout the British Empire, these things were often ignored. As the chair of the Waitangi Tribunal, Sir Edward Taihakurei Durie, has pointed out, the rule of law is useless without political commitment.
However, I think it reasonable to assert that without the British-originated treaty and British-originated common law, the claims of the prior occupiers of New Zealand and Australia would have been ignored for much longer because these British-originated instruments provided formidable weapons for those who wanted to do the right thing.
In Australia, the High Court ruled that the common law respected native title. It was only the Crown (that is, colonial governments in Australia) that confiscated it.
The fall-out from this was that the Commonwealth could no longer keep on compulsorily acquiring native property without paying compensation as the Constitution requires. Nor could the states because it would be an act of racial discrimination which is illegal under the Federal Racial Discrimination Act. It meant the land rights issue had to be dealt with, otherwise native title claims would tie up the courts and land development for decades.
Now the passing of the Native Title Act means that native title has the force of Commonwealth law (which overrides the states). The Act is based upon the provision in the Constitution created by the 1967 referendum that enables the Commonwealth to make law with respect to any race of people, including Aborigines.
The Act has not resulted the top third of the nation being claimed, as some miners and pastoralists have said. In the first year, there have been about 20 claims covering about 1.5 per cent of Australia’s area. Added to this is about a third of the Northern Territory and a quarter of South Australia given to Aboriginal groups or claimed by them.
No doubt there will be more to come. There has also be moral claims by urban Aborigines who have no access to tribal land. This is why the Government has proposed a $1.5 billion land fund, but it is having trouble getting it through the Senate.
This would arguably put Australia ahead of New Zealand in money and land area terms and in terms of government structures to deal with the claims of prior occupiers, especially if you also consider the establishment of the Aboriginal and Torres Strait Islander Commission.
Whether these structures, land and money result in an improvement in the health, education and welfare is another question. Indeed, some argue they might result in a deterioration.
If there is no improvement, of course, there will be further claims for compensation in one form or another for dispossession.
This is why it was nonsense for the New Zealand Government to offer a “”take-it-or-leave-it”, “”full-and-final” settlement. It sounded as if the New Zealand Government has taken a step backwards and said, “”We’re sick of you, get out of our hair once and for all”, rather than continuing acknowledge that Maoris, like Aborigines, will have a continuous, justified claim on the society of which they form part to bring their levels of health, education and housing up to the average standard.
It seems that after Bob Hawke’s shameful reneging on land rights, Australia is now trying to do that (even if it took a High Court case to force the issue). It seems that New Zealand, sadly, is going the other way.