Judgement Day


2012 May, 3

KERRY O'BRIEN, PRESENTER: Volatile politics at the time, but a rare historic breakthrough for Aboriginal Australians. Welcome to Four Corners. Eddie Mabo was a remarkable Australian who grew up naively believing that he owned his traditional family land in the Torres Strait Islands. He was working as a humble gardener at James Cook University in Townsville when he discovered otherwise, and launched a case that challenged the accepted common law principal of terra nullius - that Australia was essentially unoccupied when white settlers arrived here in 1788. He was David taking on Goliath. Legal Aid was his slingshot. It took ten years, but on June 3 1992, twenty years ago next month, the High Court ruled against terra nullius, and native title was enshrined in common law. But that was just the beginning. What followed was a riveting moment in Australian political and social history, when then-Prime Minister Paul Keating took up the challenge to provide a legislative framework for a ruling that promised to change the fundamental relationship between black and white Australians. It was an intense and highly-charged process of negotiation, with Aboriginal leaders, the states and powerful mining and pastoral interests, with some opponents predicting all kinds of dire outcomes for white Australians. On the eve of the anniversary, Liz Jackson has obtained exclusive interviews with the key architects of Mabo and its outcome, including former High Court Chief Justice Sir Anthony Mason, for this compelling report.

LIZ JACKSON, REPORTER: Judgement Day: June the 3rd, 1992. There was nothing in the early morning papers to tell Australians that this was the day the High Court would release its historic judgement in the Mabo case. It concerned what the judges would call the "darkest aspect of this nation's history" - the parcel by parcel dispossession of Aboriginal people from the land they owned. What the judges would call "our nation's legacy of unutterable shame". The judgement overturned 200 years of common law, and found that native title had survived British sovereignty. And it tore the country apart. The Chief Justice, Sir Anthony Mason saw it coming.

ANTHONY MASON, FORMER CHIEF JUSTICE OF THE HIGH COURT: I foresaw that the judgement would be controversial, but as often happens, you don't actually foresee the extent of the controversy, nor do you see the consequences of the controversy. I certainly thought there would be controversy. I thought that there would be objections from mining interests and from pastoral interests.

CAMPBELL ANDERSON, FORMER PRESIDENT, AUSTRALIAN MINING & INDUSTRY COUNCIL: I don't think we said that we'd lost, but we'd said, "Goddammit. What the hell's happened here? What are we going to do?"

PAUL KEATING, FORMER PRIME MINISTER: Oh I thought this was a spark that could light... light the fire.

LIZ JACKSON: Six of the seven judges on the High Court bench declared the law to date had been based on a fallacy, "terra nullius" - that the land was owned by nobody. While clearly there were people here when the British arrived, 19th century judges had deemed them too backward, too barbarous, too primitive, to have their rights over land recognised and respected. It was time to change the law. 

(to Sir Anthony Mason) And what was it factually that persuaded you that way?

ANTHONY MASON: The fact that, first, Australia was not an uninhabited country. Secondly, that the Indigenous people were not uncivilised, without customs of their own and recognition of some rights of their own; and thirdly, that they did have ties with land - as is apparent of course from their myths and their culture.

LIZ JACKSON: And that had not been acknowledged by the law in Australia before? 

ANTHONY MASON: No, it hadn't.

BILL HASSELL, FORMER PRESIDENT, WA STATE LIBERAL PARTY: It was a sense of outrage that the High Court - which is not elected by anybody, not accountable to anybody - had presumed to move into the legislative area to make a whole new law in an area where the public politically had already rejected that law, as they did in the 1980s; it was lost in the Western Australian Parliament and the Labor government had run away from its commitment to Aboriginal land rights, because they knew the public wouldn't accept it. 

MICK DODSON, FORMER SOCIAL JUSTICE COMMISSIONER: Well, to put it perhaps in simple terms, the Aboriginal Torres Strait Islander people have been here for a long, long time. The British came along, took the country without our consent, decimated the population, ignored any rights we may have had, asserted in fact that we had no rights to the land. And that had remained unaddressed - that was wrong of course - and that had remained unaddressed for, for two centuries or more. That's what Mabo meant. Mabo addressed that wrong. 

PAUL KEATING: When the High Court decision came down I thought, this is the crack of light one should crawl through, because this has got the truth about it; whereas they're a set of rights as distinct from a gift. You know the set of legislative land rights are a gift, whereas this was a set of rights earned by way of traditional association.

LIZ JACKSON: And this was a crack of light to getting towards national land rights? Is that what you're talking about? 

PAUL KEATING: Getting towards dealing with the fundamental colonial grievance - that was the disposition en masse of the lands of the original occupants of Australia. 

ANNOUNCER (1992): It now gives me great pleasure to introduce the Prime Minister of Australia to launch the International Year of Indigenous People. 

LIZ JACKSON: It's six months after Mabo, in the Sydney suburb of Redfern. Until now Paul Keating had had very little involvement in Aboriginal affairs. He'd taken no public stance on indigenous rights or grievances. That was about to change. 

PAUL KEATING: The plight of indigenous Australians affects us all. 

LIZ JACKSON: It was only about half way through the speech that the crowd began to take in what Keating was actually saying. 

PAUL KEATING: It begins, I think, with an act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases and alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion. 

LIZ JACKSON: The Prime Minister then made his public commitment to Mabo as the road to reconciliation 

PAUL KEATING: We can make it an historic turning point: the basis of a new relationship between Indigenous and non-Aboriginal Australians. 

MICK DODSON: Oh, it gave all of us a great deal of hope; particularly I felt encouraged by it, enormously encouraged by it because for the first time, at least since Federation, we had a prime minister ah who had the courage to speak truths that were hitherto unspoken. 

NICK MINCHIN, FORMER LIBERAL PARTY SENATOR: To me it was Keating trying to create some mechanism by which he could rescue a government with which was in trouble and give it some, you know, purpose - and an agenda that would distinguish it from the Coalition, which at that time of course was well ahead in the polls. But I thought it was risky for Keating to do that, because it was well outside the sort of mainstream Australian sense on these issues. 

PAUL KEATING: Oh I knew absolutely. You only had to touch this issue and it went off on you all over the place. That's why no-one ever done anything with it. 

LIZ JACKSON: Three months later, against all expectations, Paul Keating won the 1993 Federal election, 

PAUL KEATING (1993); Well thanks you ladies and gentlemen. This is the sweetest victory of all. 

LIZ JACKSON: Now Keating had the mandate of this victory to move on Mabo. 

PAUL KEATING: The High Court decision was just an opportunity for the moment, but the moment would close quickly unless there was a system of protection - a legislative system of protection for native title.

ANTHONY MASON: Paul Keating's role was important because he supported the Court's decision; he took the very important step of supporting the enactment of the Federal Native Title Act. Without the Federal Native Title Act you would not have had a system, a process for orderly handling of Indigenous land claims, and that was absolutely essential. 

LIZ JACKSON: Beyond the claims of Eddie Mabo and others, the High Court judges had not determined where native title was, or what rights attached to it. But they had made it clear, in black and white, that any grant of freehold since 1788 extinguished it. But the impact of native title on mining operations and pastoral leases was unclear. 

PAUL KEATING: Could there be co-existence of title? Could you have grazing and a traditional way of life happening concomitantly? On this, of course, the judgment was very silent - not silent but mixed. 

LIZ JACKSON: Six weeks after the election, the Prime Minster called a formal meeting with Aboriginal leaders from the Central, Cape York , Northern and Kimberley land councils, the West Australian Legal Service and the Social Justice Commissioner. It was one of the rare occasions that Aborigines have been invited into the Cabinet Room. There were customary formalities first - a presentation by artist Wenten Rebunjta 

MICK DODSON: Governments say they always consult, but this was a bit different because not only was the Government consulting, it was also trying to negotiate an outcome with us. 

LIZ JACKSON: At later talks with the Mabo Ministerial Committee, the Aborigines presented a Peace Plan - their basis for future negotiations. 

MICK DODSON (1992): I am not authorised nor am at liberty to discuss the specifics of today's meeting, but certainly we are encouraged by the approach of the Prime Minister. 

LIZ JACKSON: Fundamentally, the Aborigines wanted the Commonwealth's proposed legislation to override the states' land management powers, and affirm and protect Aboriginal rights, including the right to veto access to their land. 

PAUL KEATING: A lot of that I agree with, of course. A lot of that I agree with. I mean not saying the states would agree with it, but certainly I agree with it. So you've got to get the psychology right. They'd always been done over. They'd always been done over. So all of a sudden they're brought into the system, and they're saying, "What does this mean? What does this mean?" And I'm saying to, "It means for the first time you're not going to be done over. You're going to have real rights here." And they're saying, "Really?" 

LIZ JACKSON: It's one week later and the Prime Minister Paul Keating is a guest at the annual dinner of the Australian Mining Industry Council. He's being met by the President of AMIC, Campbell Anderson. The council is made of the CEOs and directors of the major mining companies in the country, and they don't like Mabo. The director of Western Mining, Hugh Morgan, had recently called on the Commonwealth to repeal the Racial Discrimination Act so the states could just extinguish native title. 

(to Campbell Anderson) Do you think most of the board felt it would have been a better thing had it never been found? 

CAMPBELL ANDERSON: I think from the mining industry's point of view there is no doubt that that was the case. Whether we would all have called for its total extinction - I suspect we would have in the first instance as our first response. 

LIZ JACKSON: And failing that?

CAMPBELL ANDERSON: Well, to see how we could impact on the legislation, the enabling legislation, that was going to be passed, which is what we sought to do. 

LIZ JACKSON: The Prime Minister knows these people well. He was for years the shadow minister for minerals and energy. 

PAUL KEATING (1992): Ladies and gentlemen, thank you very much for having me here tonight to speak to you 

LIZ JACKSON: Tonight he's come to deliver the message that he's committed to Mabo. 

PAUL KEATING (1992): Now, the other important issue is the question of Mabo, and where it goes. I have said to Campbell and his colleagues who saw me last week with APIA and the National Farmers Federation, that I think Mabo is a distinct opportunity for Australia and should be pursued ambitiously. 

LIZ JACKSON: Keating is aware of the miners' concerns. 

PAUL KEATING: Well the mining concerns were pretty real, because there were mining operations and exploration operations over what was obviously native title land, and yet Aboriginal people had been given no say, no compensation - and so therefore the chances are that the High Court would find grants invalid..So the mining industry were horrified - and not it wasn't faux horror, it was real horror. They weren't putting on an act, you know - they didn't know where they stood. 

LIZ JACKSON: So certainty is what they were looking for? 

PAUL KEATING: Yeah, well, more than that: validation. 

LIZ JACKSON: There was an early call not just for validation but for extinguishment. I mean Hugh Morgan was out there pretty early on saying that what you should do was give the states the land management rights and let them just extinguish native title. 

PAUL KEATING: Oh well, I just disregarded those people, yeah. Just, you know, didn't didn't that didn't even touch the sides with me, that view 

LIZ JACKSON: Meanwhile, in Canberra, Government has produced a Mabo discussion paper. It proposes validating all titles issued after the 1975 Racial Discrimination Act, removing a major concern of the miners and the pastoralists. It canvasses giving native title claimants limited veto rights and the right to negotiate over future developments. It proposes setting up a tribunal system run by the states, but according to national standards set by the Commonwealth. 

It was produced the week before the COAG meeting between the Prime Minister and the state premiers, where Keating hoped to seal a deal. It was never going to be easy. 

By nightfall it was clear that Richard Court would never agree to a national solution 

RICHARD COURT, FORMER WA PREMIER: I was alone in the sense that I was explaining that Western Australia was in a different position. We were a large state - one third of the Australian land mass - and only seven per cent of our state was freehold land, so most of the rest could be claimed under this new concept of "native title". 

LIZ JACKSON: By the end of the second day, the talks had collapsed. 

(to Paul Keating) What was the fundamental sticking point? I mean what caused the talks to collapse? 

PAUL KEATING: Oh I... look, it's very hard to pinpoint any one thing. It's just that they wanted... they didn't want the Commonwealth in there really at all. Land management was for them.

LIZ JACKSON: Why was it important to keep Federal control over the process when, constitutionally, the states had had management land management control before that? 

PAUL KEATING: Well, the 1967 referendum gave the Commonwealth power to legislate for Aboriginal people, and I believe we needed a national approach to native title, not a state-sponsored approach, national principles and... 

LIZ JACKSON: Because... because why? Why? 

PAUL KEATING: Well, for... for the greater guarantee of justice and equity. 

LIZ JACKSON: You didn't trust the states? 


LIZ JACKSON: Why not? 

PAUL KEATING: You couldn't trust them out of your sight. 

LIZ JACKSON: Because? 

PAUL KEATING: Well they'd go and rob them. Again. They'd take it off them. 

LIZ JACKSON: Paul Keating has put to us that the reason he thought it was important that the Commonwealth run the system was he didn't trust the states. 

RICHARD COURT: Oh well thank you. Perhaps we don't trust the central government. 

LIZ JACKSON: Six months later, Richard Court's government enacted a law to extinguish all native title in Western Australia. 

(to Richard Court) Your act was found to be inconsistent with the Racial Discrimination Act. 

RICHARD COURT: Our act that we put in was ruled out in a High Court challenge... 

LIZ JACKSON: On the basis that it was inconsistent with the Racial Discrimination Act. 

RICHARD COURT: Yeah, basically the Federal Government legislation overruled our legislation, and I don't accept that it was a racist act. I find that offensive. 

LIZ JACKSON: It's the 17th of June, 1993 and the Newspoll is showing 43 per cent of people are in favour of allowing Aboriginal people to claim native title, 46 per cent are against. It's two weeks after the Wiradjuri people lodged a Mabo-style claim over a third of NSW. It's one of many native title ambit claims with no chance of success, but people are rattled. 

Paul Keating is going on Radio 2UE's John Laws show. The Prime Minister is here to reassure the listeners. The first call is about the Wiradjuri claim. 

(Excerpt from Radio 2UE, 1993) 

PAUL KEATING: The claims don't have a snowball's chance in hell of succeeding. They've got nothing to do with Mabo, nothing whatsoever. 

CALLER: Never mind about Mabo... PAUL KEATING: Okay, what's your problem? 

CALLER: I have to buy my land, why can't they buy theirs?

PAUL KEATING: If there'd been a treaty here in 1788, then the thing is, maybe. Maybe that the Crown might have bought its land. 

CALLER: There couldn't be a treaty, Mr Keating, you know that, because there was too many tribes and clans and whatever. 

PAUL KEATING: Oh, right, well thank you for your anthropological advice. 

CALLER: Well that's in the history, I'm only talking in history. Right, now... 

PAUL KEATING: I think you're talking prejudice, mostly, aren't you? 

JOHN LAWS: Okay, now we must take another call, because that was the idea, the let the people of Australia talk to you... 

(End of excerpt) 

LIZ JACKSON: This is the second call 

(Excerpt from Radio 2UE, 1993) 

CALLER II: Good morning. 

JOHN LAWS: Okay, the Prime Minister is here. 

CALLER II: Yes, good morning. Just a very broad question, Mr Keating, is, why does your government see the Aboriginal people as a much more equal people than the average white Australian? 

PAUL KEATING: We don't. We see them as equal. 

CALLER II: Well, you might say that, but all the indications are that you don't. 

PAUL KEATING: But what's implied in your question is that you don't; you think that non-Aboriginal Australians, there ought to be discrimination in their favour against blacks. 

CALLER II: Not... whatsoever. I... I don't say that at all. But my... myself and every person I talk to - and I'm not racist - but every person I talk to... 

PAUL KEATING: But that's what they all say, don't they? They put these questions - they always say, "I'm not racist, but, you know, I don't believe that Aboriginal Australians ought to have a basis in equality with non-Aboriginal Australians. Well, of course, that's part of the problem. 

CALLER II: Aren't they more equal than us at the moment, with the preferences they get? 

PAUL KEATING: More equal? They were... I mean, it's not for me to be giving you a history lesson - they were largely dispossessed of the land they held. 

CALLER II: There's a question over that. I think a lot of people will tell you that. You're telling us one thing... 

PAUL KEATING: Well, if you're sitting on the title of any block of land in NSW, you can bet an Aboriginal person at some stage was dispossessed of it. 

CALLER II: You know that for sure, do you? 

PAUL KEATING: Of course we know it for sure! 

CALLER II: Yeah, [inaudible].

PAUL KEATING: You're challenging the High Court decision, are you you? You're saying the High Court got this all wrong. 

CALLER II: No, I'm not saying that at all! I wouldn't know who was on the High Court. 

PAUL KEATING: Well, why don't you sign off, if you don't know anything about it and you're not interested. Good bye! 

CALLER II: Yeah, well, that's your... 

PAUL KEATING: No, I mean, you can't challenge these things and then say, "I don't know about them". 

JOHN LAWS: Oh well, he's gone. 

(End of excerpt) 

LIZ JACKSON: The caller has hung up. 

(To Paul Keating) And you felt you could deal with that? 

PAUL KEATING: Well you can never quite deal with it. You can only... you can deal with it. It doesn't say that you send everyone away as satisfied customers. I mean, I think the Native Title Act was material in the decline in the standing of the government, you know, from 1993 onwards - particularly in Western Australia and Queensland. 

LIZ JACKSON: Did you political damage? 

PAUL KEATING: Oh, huge. 

LIZ JACKSON: How nervous did that make your political colleagues? 

PAUL KEATING: Oh, a lot of people in the Labor Party very nervous. A lot of lot of my colleagues didn't want a bar of it. Didn't want a bar of it. 

LIZ JACKSON: Up till now the Coalition had been keeping a low profile in the Mabo debate. Internally they were divided with no clear public position. But at the NSW National Party Conference, their leader, Tim Fischer decided to change that. 

TIM FISCHER, FORMER NATIONAL PARTY LEADER (1993): Delegates of the National Party: the subject of my address today is Mabo and the monarchy, and let's not forget, the economy. 

LIZ JACKSON: When it came to Mabo, Fischer told the delegates that there was no room for guilt. TIM FISCHER (1993): Rightly or wrongly, dispossession of Aboriginal civilisation was always going to happen. Those in the guilt industry have to consider that developing cultures and peoples will always overtake relatively stationary cultures. We have to be honest and acknowledge that Aboriginal sense of nationhood or even infrastructure was not highly developed. At no stage did Aboriginal civilisation develop substantial buildings, roadways, a wheeled cart as part of their different priorities or approach. 

(to Liz Jackson) I was merely acknowledging they went one way, others went another way. 

LIZ JACKSON: But you were suggesting in that speech that because they never did develop roadways or even a wheeled cart... 

TIM FISCHER: They elected not to or they chose not to or they did not do. 

LIZ JACKSON: ...that they had no native title entitlements.

TIM FISCHER: They had, I think, less of a claim. 

(in 1993) Mabo has the capacity to put a brake on Australian investment, break the economy and break up Australia - a break, a break and a break up we can well do without. 

LIZ JACKSON: You did say that at that time that Mabo had the potential to put a "break on investment in Australia... 


LIZ JACKSON: ...break the economy... 


LIZ JACKSON: ...and break up Australia." 

TIM FISCHER: There was, you must remember... 

LIZ JACKSON: Was that a "yes" to that as well? 

TIM FISCHER: ...a very fragile set of circumstances applying, as people began to realise that that which they thought was a fair dinkum title to lands that they were operating on may not have any legality whatsoever. 

LIZ JACKSON: It's late September 1993, and the protesters are heading for Parliament House in Canberra. The government has released an outline of the proposed Native Title Act. Outside Parliament House, this group burn a copy of the consultation paper. 

Two weeks later inside the Parliament, the so called "A-team" of Aboriginal leaders have been meeting over three days, face-to-face with Paul Keating, to negotiate a deal. Their bottom line concerns have remained the same: a right to control access to native title land; keeping the protection from extinguishment provided by the Racial Discrimination Act; and for the Commonwealth to control the process. Right now they're worried. 

MICK DODSON: Certainly it was something different for the leadership, probably the first time when we had such a huge issue being directly negotiated with the Prime Minister, and so much being at stake. I think there was doubts all around. 

LOWITJA O'DONAHUE, ABORIGINAL LEADER: I was frustrated that we weren't going forward, I thought, in the way we should - which finally led, of course, to Black Friday. 

LIZ JACKSON: The following day, a Friday, the A-team announce to the press they feel betrayed. They've heard Keating's Cabinet is prepared to suspend the Racial Discrimination Act in a bid to get the states onside. 

MICK DODSON (1993): I could be cynical and say it's true to form, historically. I think the reality of the situation, as the Government sees it, is a political reality is that those states and territories and other vested interests, can politically do more damage to it than indigenous people can. 

NOEL PEARSON, CAPE YORK LAND COUNCIL (1993): I personally wrote to the Prime Minister earlier this week, and said if there was one issue on which I will never be reconciled, and my organisation will never be reconciled - and that is, if there be any infringement of the integrity of the Racial Discrimination Act. I've done my share of cajoling and reasonable argument and sleazing around the corridors, but I think the ball's in the Prime Minister's court as to whether it is... the states are going to party to this national reconciliation; whether the Indigenous people of this country are going to be party to the national reconciliation.

LIZ JACKSON: The Prime Minister called meetings with the A-team. 

PAUL KEATING: I'm picking a number out of the air, but I'd say probably for 10 or 12 days there was to-ing and fro-ing around these issues. Of course Aboriginal people were experienced in negot... at that stage, the negotiating - they're putting pressure on, you know they're saying things in public, you know, they're doing things to put pressure on you, you know? 

LIZ JACKSON: Behind closed doors Keating was persuaded that validating all pre-existing titles could be done without suspending the Racial Discrimination Act. Part of the quid pro quo was that the A team would publicly support the validation sought by the miners and the farmers. Keating's message was, "Compromise now if you want a Native Title Act", and he would support most of what they wanted. 

LOWITJA O'DONAHUE: What I was pleased about, that Keating was always able to say, "Well, I can't negotiate on that." And he was open and truthful when he thought that he could deliver, and if he couldn't he told us to our face. 

LIZ JACKSON: Was veto one of those issues? 

LOWITJA O'DONAHUE: Veto was one of those issues, yes. 

LIZ JACKSON: Ten days after Black Friday, a deal had been agreed. As the Prime Minister got closer to tabling the Native Title Bill, his senior Cabinet colleagues were having second thoughts. Opinion polls taken in late October showed 35 per cent in favour of the Bill, 41 per cent against. The Mining lobby was taking out full-page ads, warning of dire financial consequences, and calling for "One Australia for All Australians". 

PAUL KEATING: Well the biggest pressure came at the end. Look... the greater body of the parliamentary caucus, in the form of senior people in the Cabinet, wanted me to give it up towards the end, and I said, "You've got to be joking, you've got to be joking". But they weren't joking. You know, they didn't think I could get it through. 

LIZ JACKSON: At midnight, in the last days before the Bill was tabled, Paul Keating rang the President of the National Farmers Federation, and nailed down the farmers support. Keating gave his personal assurance that their titles were secure. 

GRAHAM BLIGHT, FORMER NFF PRESIDENT: I mean here was a discussion about trying to have two titles on one piece of land that were recognised titles. And that was something that was very difficult for pastoralists to understand - well anyone to understand, in fact. And the trust issue got us over the line there. 

LIZ JACKSON: You trusted Keating on... 

GRAHAM BLIGHT: I trusted Keating to deliver. 

LIZ JACKSON: On the 16th of November, Keating tabled the Native Title Bill in the House of Representatives - a Bill "to rectify the consequences of past injustice". Over the following days, the Coalition fiercely opposed it. 

JOHN HEWSON, OPPOSITION LEADER (1993): You raised the expectations of farmers: you sold them out. You raised the expectations of miners: you sold them out. You're asking the people of Australia to sign off on a blank cheque that will cost them hundreds of millions; indeed the minister behind you say, "Billions of dollars!" Open-ended commitment, for what? Because you want to go down in history as the man who could reconcile black and white Australia? 

PAUL KEATING (1993): We will triumph with this Bill of principal, and why the nation will embrace it: for righting a wrong 200 years in the making.

JOHN HEWSON (1993): The megalomaniac at the desk wants to go down in history as the one person who wanted to reconcile black and white Australia! 

PAUL KEATING: And there's no way you can slide and hide behind the [inaudible] of our guillotines - to cover your shame of trying to denude the first Australians, the Indigenous Australians, of the land that should be theirs! 

LIZ JACKSON: The Bill was always going to pass in the House where the government had the numbers. The problem was the Senate, where the minor parties held the balance of power 

PAUL KEATING: We were being held to ransom in the Senate by the two Greens from Western Australia, who thought they had a better solution for Aboriginal people than the one the government was offering. I had Christabel Chamarette and Dee Margetts over with their classic whitey line: "We know better for Aboriginal people". You know, I said, "You're just another bunch of whiteys like all the others." You know, "You always know better than them." I said, "I'm dealing with them, but you know better than them, is that right?" 

LOWITJA O'DONAHUE: I think I gave up actually, on them. 

LIZ JACKSON: The Greens were talking to Aboriginal people who wanted to hold out for more than the A-team had delivered. After days of tense negotiations, the Greens came on board. 

The division in the Senate came just before midnight, and just before Christmas,1993. The debate had been running for 111 solid hours, the longest in 92 years of Senate history. Finally the result came in. 

DOUG MCCLELLAND, PRESIDENT OF THE SENATE (1993): Order! The result of the division: there being 34 ayes and 30 noes, the question is resolved in the affirmative. 

LIZ JACKSON: The native title bill was through. 

PAUL KEATING: It was done within 18 months of the court decision. Like, in 200 years of procrastination and 18 months they had an Act of Parliament to protect and award native title. 

LOWITJA O'DONAHUE: I think it was important for Keating, 'cause Keating had made a decision, I think, that this was the biggest thing he was going to do, you know, during his term, and he wanted to have something, you know, that he'd achieved during that period of time, and he chose native title as being it, and of course he pulled it off. 

LIZ JACKSON: Twenty years have passed since the High Court handed down the Mabo judgment, 18 since the Native Title Act was passed. Governments have come and gone, and the Native Title Act has been amended. The High Court has also made significant rulings, which have expanded the resilience of native title, but also made it much harder to prove. 

What hasn't changed is that Australian law now recognises the prior ownership of the land by Aboriginal people. And while much of native title has been extinguished, there are places it has survived. This is one, in the Pilbara region of Western Australia. Four Corners was here last year with the owners of the land. 

It took seven years to negotiate a deal with Rio Tinto to mine on their land, but the benefits are substantial. 

ELAINE JAMES, ABORIGINAL ELDER: Well my best hope is by, you know, people got opportunities to be self-sufficient, you know, one day own business and put up something for their... feed the children, you know, they're just still comin' up you know. They'll be the ones that gonna benefit more. You know, big step for us was just getting to this final agreement, you know, although it's been a very hard road for us to get there, and finally we are here.

LIZ JACKSON: Over the past 20 years, there have been 140 successful native title claims, over both land and sea. Native title is now recognised as covering 17 per cent of Australia 

(to Campbell Anderson) How do you think Mabo has changed Australia? 

CAMPBELL ANDERSON: It certainly required the industry to talk more to Aboriginal people, and I think that's a plus. I think the Aboriginal... the relationship between the mining industry and the Aboriginal people is much better than is generally considered in the community, and I think that's probably because of Mabo rather than despite it. 

ANTHONY MASON: I don't know that I had particular hopes, but I thought it meant a lot that Indigenous land rights were recognised. I thought that would enable the Indigenous people to take more pride in their inheritance than they had done otherwise. I also thought that it would enable them to see that the justice system in Australia was capable of delivering results - results that actually protected their interests. 

RICHARD COURT: One of the downsides of what's happened as a result of the system that's been put in place: there's a very strong focus on money, you know, there's a strong focus on settling claims with, sort of the, you know... the financial, you know, dollar - and at the end of the day it takes a lot more than money to bring about true reconciliation. 

MICK DODSON: What we want is an acceptance of our history and what has happened to us, the first Australians. Now don't deny the historical truth. If you can do that, you'll free your heart. 

KERRY O'BRIEN: Eddie Mabo didn't live to see his triumph. He died five months before the High Court ruling in 1992. He was just 55. The ABC will broadcast a powerful telemovie telling his remarkable story on Sunday night, June 10. Next week on Four Corners: we go inside the world of football in this country - the real school of hard knocks. We feature the latest global research on hits to the head, and how the various codes in Australia are dealing with the long-term effects. It's a story every parent should invest the time to watch. Until then, goodnight.


Judgement Day