Hugh Morgan hurried out of the ANU Arts Centre last week, into a white limousine and off. He had time to say with his disarming smile that he did not think his comments about Aboriginal land rights would be well received.
Morgan, who is managing director of Western Mining, had just delivered the Joe and Enid Lyons lecture. His theme was that the High Court’s üMabo@ decision earlier this year recognising native title to land was wrong. Aborigines in 1770 were too primitive to negotiate a treaty, therefore as the law stood in the 18th century Australia was terra nullius (vacant land there for the taking by proclamation and settlement).
He said that because of the decision the High Court had thrown the whole of Australian land law into disarray. Expensive lawyers were giving various opinions and the mining industry, among others, was in a state of uncertainty.
He admitted in the speech it was not popular stuff. In the short time afterwards for questions, he attracted angry comments from two Aboriginal questioners. In the next parliamentary sitting he attracted further anger from the Prime Minister.
Now let’s go to Darwin. The director of the Northern Land Council, Mick Dodson, said his council had received instructions from the traditional owners of the Nabalco bauxite mine on Gove peninsula to press a claim in the High Court.
Earlier at a conference in Darwin Charlie Perkins called for sovereignty and national land rights now. And then we have Michael Mansell calling for a separate Aboriginal state.These are the extreme views, but they are valuable because they define the ground.
Mabo was decided in June. It is still drawing vigorous debate four months later. That says something about its force, and its complexity.
Essentially, the case said that the common law recognised indigenous title to land. That title was not extinguished by Captain Cook claiming the land for the Crown. But it was extinguished if the Crown (or state or Federal Parliament) granted title to someone else or if the indigenous people had died out or ceased to observe customs that connected them with the land.
So if indigenous people could show they had continued to occupy the land and observe their customs on it, it was theirs.
It is very hard to say how much land might be at stake. In the Northern Territory the Federal Land Rights Act provided by statute roughly what the High Court provided in Mabo, and as a result 53 per cent of the territory has been claimed or is under claim.
Under Mabo, about 30 per cent of Western Australia could be claimed and perhaps as much as 20 per cent of Queensland.
The only parts of the continent that definitely could not be claimed are the freehold areas, estimated at 15 per cent of the total area of the contintent _ the most populated south-east and south-west and the Queensland coast.
That’s the easier part of the case. What flows from it is the hard part.
It is clear that one of the six colonies before federation could extinguish native title and that they did so, especially by grant of freehold or possibly pastoral leasehold over land or by the colonial government using the land itself for railways, roads and the like.
So what can’t the states continue to extinguish native title? Perhaps they can, but only if they do not offend Commonwealth law, notably the Race Discrimination Act. Any wholesale attempt to extinguish native title by a state will be struck down as invalid. This was held by the High Court in the first Mabo case in 1988.
Well, if the states can’t extinguish native title, why can’t the Commonwealth? Maybe it can, but it would have to pay compensation, because the Constitution demands it.
Thus this year’s Mabo case has created a new terra nullius of its own. We have a no-go area with respect to the extinguishment of native title and the creation of new title in areas where indigenous people live a traditional life style.
Perhaps the most important area of uncertainty is mining.
Until Mabo it was assumed that the Crown reserved all mineral rights. (This is the Crown as the state, rather than the Commonwealth.) Even if you hold freehold you cannot stop mining exploration and exploitation on your land, subject to compensation and lodgment of bonds under the various state mining Acts.
The question now is whether native title runs to stopping mineral exploration and exploitation. Did the mere passing of the state mining laws extinguish at least that part of native title that would stop mining?
This is Hugh Morgan’s concern. Mining provides a huge amount of wealth for Australia and, of course, for Western Mining. Hugh Morgan’s solution would be for the Federal Government to repeal all more most of the Race Discrimination Act so that the states could extinguish native title. Now that just ain’t going to happen. Politically it can’t.
Thus the High Court has locked federal and state governments into legislative impotence. Before Mabo they could conveniently rely on the 1971 decision of Sir Richard Blackburn in the Gove land claim which upheld terra nullius. Now they cannot.
Thus Mabo means that Aborigines no longer have to rely on charity, white guilt or goodwill to negotiate land claims. They can argue from a position of enforceable right.
It is possible that the High Court registry will get inundated with land claims in the next few months. Indeed, a land claim in Kimberleys has already begun. Where will it end?
The chair of the Council for Aboriginal Reconciliation, Pat Dodson, said some very sensible things about this at a conference in Darwin earlier this month.
He said that Mabo meant indigenous rights had to be recognised by other Australians. While this presented a great opportunity “”it also has the potential to intensify the conflict between us”.
Going through the courts was not the best way. Others ways had to be found to resolve land disputes.
Northern Territory MLA Wes Lanhupuy says there is not need for a separate state, but there is need for greater legal and constitutional recognition. It might mean that only some of Aboriginal law would apply to only some people in some places.
And perhaps most pertinently, Pat Dodson (subs: leave Pat in so not confused with Mick) said: “”Reconciliation does not need to wait until the year 2001.”
Indeed, Mabo has given the reconciliation process greater urgency. Without it, there are several dangers.
One is that the cry for a separate Aboriginal state will get more support among Aborigines. Given the diversity of tribes, language and culture and lack of geographic continuity of land, it seems an unworkable proposition, and the majority of traditional Aborigines have wisely rejected it as not in the best interests of their people. But if reconciliation is delayed this might change. As Pat Dodson says: “”Many are aware of the token promises and the fruitless consultations.”
The second danger is that a glut of court cases will prevent worthwhile development and mining. The lot of Aboriginal people is not going to be improved if the general wealth-generation of the community is impaired. Mining and Aboriginal culture have an unfortunate natural conflict. In many cases, the sort of unusual geological formations which give rise to a place having sacred significance for Aborigines are the same ones that give rise to mineralisation. Thus the frequency of cries from miners: why are there always sacred sites wherever we want to mine and the cries from Aborigines: why to they want to mine exactly where there are sacred site. Why can’t they mine somewhere else? A reconciliation will be betters for mining than court cases.
The third danger of a failure in reconciliation is that Australia’s reputation overseas will continue to suffer.
And without greater efforts towards reconciliation, the large land councils will continue to dominate Aboriginal affairs, without necessarily meeting the aspirations of the people the purport to represent.
Yes; the Mabo decision has caused the raising of voices with unpopular views. At present, that is not such a bad thing. While some people call for a repeal of the Race Discrimination Act, on one hand, and a separate Aboriginal state, on the other, it will give the necessary sense of urgency to the broad mass of Australians to act upon the sensible things said by people occupying the middle ground.