Our best chance

Opinion Article

1997 March, 29

Despite the conservative ascendancy in political power in Canberra and the high passions evoked on all sides, the Prime Minister holds the key to a fair outcome on native title.

It was with a degree of political trepidation that I met Prime Minister John Howard earlier this year to discuss the Cape York Land Use Agreement and the implications of the Wik decision.

I had told the National Press Club last year that I believed Howard fundamentally disagreed with the High Court's original Mabo decision. This he indignantly denied.

Privately, the Prime Minister holds the mistaken view that the indigenous leadership is ``Labor to the bootstraps''.

During last year's federal election campaign, I expressed the view that the Coalition's concept of government ``For All Of Us'' was in fact an exclusivist, if clever, slogan for mainstream Australia. It tapped into a rich vein in the Australian community after long years of a growing sense of economic malaise and social insecurity. The Pauline Hanson phenomenon manifested what the Coalition election strategists had understood long before the last federal poll: that, among other things, a ``backlash'' was in the offing.

Given this background, I went to the meeting half-wondering whether I had to undergo some ritual denunciation of former Labor prime minister Paul Keating and all his works and all his ways in front of the Queen's portrait in the prime ministerial foyer. If Howard is convinced of anything about Aboriginal policy it is this: that Keating had got it wrong and there needed to be a decisive break with the policies developed under Labor.

My view is that Keating laid out the foundation for indigenous inclusion in the Australian nation by seizing on the opportunity and correctness of Mabo as the starting point for getting everything else right. Amid all of the smouldering ruins of indigenous economic and social policy initiatives, Keating had carved out a place for indigenous people in the national future. The fringe dwellers finally could see a place for themselves in their own country.

I suspect Howard is not convinced of this. Far from Keating pulling together the philosophical threads that must anchor indigenous policy if we are to get it right, his successor is extremely sceptical. I expect Howard believes that the country was instead held hostage to a native title delirium induced by the cafe society cultural elite.

His comments about the ``black armband view of history'' and the convulsions in indigenous affairs in the first six months of government indicate how deeply held are his views on our colonial history and the position of indigenous people in Australian society. I think it also indicates a vehement and, indeed, personal disagreement with his predecessor on the subject.

When the Coalition took office, I expressed the hope that it would recognise the essential correctness of the emerging national policy direction. This hope was not fulfilled but it was by no means lost.

I often wonder whether the residual political enmity between these two longstanding political foes clouds Howard's assessment of his predecessor's leadership on indigenous policy.

Given his own ascetic style, I suspect Howard believes that there was too much euphoria and not enough practical outcomes from Mabo.

One could never have reasonably expected the Coalition simply to carry over the policies of the past. The failures in indigenous health, employment and social policies after 13 years of Labor were egregious and needed a new energy.

But such failures lie as much in the denial and inadequacy of resources available to address indigenous disadvantage as they do in the will of the indigenous community to help provide solutions.

That is why Aboriginal Affairs Minister John Herron's refreshing emphasis on empowerment has to be seen as a critical part of the formula.

As with other societies, indigenous society can and will advance only when we realise that rights and responsibilities are sides of the same coin.

Howard long has held a vision of One Australia, for which he believes he was unfairly maligned in the past. But Keating also spoke of One Nation.

Pat Dodson and his colleagues on the Council for Aboriginal Reconciliation, who will host a milestone national conference in May, also speak of a united nation.

The differences within this apparent consensus around unity centre on the relative emphasis placed on diversity. Indigenous peoples as well as the numerous ethnic communities in our country have a desire to maintain diversity and to celebrate our differences as well as those things that we share as Australians. They reject assimilation.

On the other hand there is a strong view in the Howard Government that the emphasis on diversity has been at the expense of unity and that the ``multi culti'', to use Robert Hughes's phrase, is a barely disguised Labor outpost.

Despite the origins of multicultural policy in the Fraser government, it is for these reasons that it is heading for the political-correctness dustbin.

But my own view is that those things that separate and those things that unite us also are two sides to the same coin. The disaster of assimilation and the sheer resilience of our various identities and the fact that humans have layered identities and do not simply fall within one box or the other have surely taught us that diversity is essential to unity.

Is there really such a gaping philosophical divide between Howard's approach to rights and responsibilities and diversity and unity and that of Keating? I don't know.

I hope that, since the Whitlam government, Australia has been developing a bipartisan consensus founded on justice and equality for indigenous people, and not just on convenience and apathy.

In the wake of the Wik decision, however, and knowing too well the political imperatives facing Howard, from the moment he expressed ``disappointment'' in the High Court's decision I believed there was no hope of a fair outcome for indigenous people.

There are strong, if not overwhelming, reasons the Prime Minister will likely fail to deliver justice to those who were supposed to be the beneficiaries of Wik, even though he may wish to.

Howard has met indigenous representatives to discuss proposals for the resolution of native title issues on a number of occasions. There is clearly some reserve and suspicion in these relations.

However, he has been straightforward in his view that Wik was unexpected and overturned long-held understandings.

He seems to be sincere in his determination to deliver justice for both sides if he can, he says but we have been left in no doubt that he believes that there also is a question of justice for pastoralists.

Few on our side would deny that there is an imperative for justice for both parties pastoral and indigenous. However, Howard's constant reiteration of the need for certainty for pastoralists and his selectively political interpretation of the Native Title Act cause some palpitations on our side.

If there is not trust in the present process, there is at least a commitment from the indigenous leaders who have been working in Canberra over the past two months and the Government's Wik task force to try to locate fair solutions.

The bureaucrats clearly have the Prime Minister's imprimatur to work closely with indigenous representatives. Obviously the same thing is taking place with the miners and farmers.

The pressing policy and legislative challenge is: if Aboriginal people agree that the existing right of leaseholders should be confirmed what exactly are these ``existing rights''?

Under some legislation, such as the Northern Territory Pastoral Lands Act, the rights of pastoralists easily can be ascertained. Under the Queensland Land Act, the rights under leases are less clear.

There is a need for clarification. The fact that many leases include certain rights to undertake agriculture as well as pastoral activities adds to the complication.

There also is a need to ensure that leaseholders have continued access to natural resources to be able to carry out their rights under their leases. Many of these issues such as access to water and the ability to construct fencing and other improvements are, according to legal advice to indigenous organisations, not disputed.

To the extent that these issues are under question, then there is a preparedness to clarify the situation.

But not all of the questions about native title can be answered in the legislation. We could not hope to produce legislation which comprehensively delineates the common law concept of native title.

What we can aim for is to produce legislation which provides pastoralists with the utmost certainty in relation to their understanding of, and the exercise of, their legal rights under their leases. There also should be certain and efficient processes for miners who will need to deal with native titleholders.

There is much that can be done to secure these objectives and to make the Native Title Act work better. The problem has been that those who are troubled by the ``workability'' of the legislation have chosen what they think is the most efficient path to certainty: extinguish native title so you don't have to deal with it.

This has a superficial attraction to the hardliners in the National Farmers Federation, the United Graziers Association and some quarters of the National Party. But, given the constitutional problems involved in this approach and the fact that we cannot retreat from the High Court's prescription that we should share the country, there will be no certainty in extinguishment.

If Keating had been prime minister when the Wik judgment was delivered, he, too, would have wanted to avoid the political problems and challenges posed by the decision. While the Native Title Act did not set out to extinguish native title in valid pastoral leases, the Keating government believed that the High Court would find in favour of extinguishment.

However, both the Keating and Howard governments understood that there always was a chance the court would find in favour of co-existence.

The Prime Minister has to deal with the fact that the High Court has so ruled. Co-existence and sharing pastoral country are inescapable.

The fact that conservative politics in Canberra is in the ascendant, and given the high passions on all sides and the fact that the opinion polls show that resentment and ignorance about indigenous people and their rights are rampant in the community, it seems strange to me that Howard represents our best chance of securing a fair outcome for all of us.

Our best chance