End of Mabo Equivalent to twisting the knife

National Press Club

1996 November, 12

End of Mabo Equivalent to twisting the knife

The Howard Government’s proposed amendments to the Native Title Act, which would take away rights from Aboriginal people, would remove the only viable foundation of reconciliation in Australia.

Speaking on behalf of the National Council of Churches at Parliament House, Canberra, Bishop Wilson said that for the Federal Parliament to take away the rights of Aboriginal people under the Mabo decision “would be the equivalent of twisting the knife”. He is dead right.

The tragedy for Aboriginal people is that we are losing the public argument. Having succeeded with the argument that Mabo was a once in a nation’s lifetime opportunity to be a foundation for reconciliation in 1993, only three years later we are faced with a government and a country that is hellbent on changing the rules and taking away rights from Aboriginal people.

The tragedy is that Senator Nick Minchin and I am sure many people in the Government, including Prime Minister Howard, do not want Aboriginal people to kick and scream about the changes. They really would like Aboriginal people not to be outraged and so upset. They would like Aboriginal people to accept their argument that the amendments are balanced and fair to all parties. Because they do want reconciliation to succeed. Minchin, Howard, Herron - they all would like reconciliation to succeed. They all hope that the Native Title will not stand in the way of reconciliation. If only the natives would see things their way.

The problem is that the terms upon which Herron, Howard and Minchin want peace requires a total capitulation by Aboriginal people in relation to Government stealing their legal rights to land. It requires Aboriginal people to surrender. To not say anything whilst their legal rights are taken away from them by Parliament. They expect peace to be achieved by Aboriginal people adopting a completely undignified and dumb position. Pretending that they are not being sold a pup.

When the Labor Government negotiated the passage of the Native Title legislation in 1993, Paul Keating spoke about how not everybody had gotten what they wanted. Industry, Government and Aboriginal people had all gained things and all had been forced to compromise. Everybody wanted more for their side, but generally the right balance had been struck.

The reason ATSIC and the Land Councils supported the Native Title Act was that the legislation basically preserved the possibilities created by the High Court decision. It provided certainty of tenure for the wider community, Government and Industry without taking away potential native title and giving Aboriginal people some rights when their land is being dealt with.

But now Howard is saying: we are trying to strike the right balance. Not everybody will be happy with the result. This means that Howard must be getting it right.

The Howard amendments have two effects:

• they give greater rights to Industry and State and Territory Government

• they take rights away from Aboriginal people

Considering the compromises that were made by Aboriginal people in 1993, for the Australian people to stand by and watch the Howard Government push these amendments through, would be to spell the end of reconciliation. And I am not seeking to exaggerate.

I have always been concerned about the reconciliation process. I have been concerned that black and white people cannot continue to Cry Wolf on reconciliation every time something goes wrong. There are always going to be setbacks. We can’t just complain about the end of the reconciliation process, every time something negative happens.

But with Mabo, we are talking about something absolutely fundamental. Mabo is the cornerstone of reconciliation, because it rejects terra nullius and says that Aboriginal people first owned this country under their own laws and the laws of England.

Coming as late in the history as it did, 204 years after the arrival of the First Fleet, faithfulness to its meaning was absolutely essential to the Mabo High Court decision. For white people who had for 204 years been unfaithful to the truth and killed and maimed and destroyed in the name of the lie of terra nullius, it was imperative that there be fidelity to Mabo.

But in the most ungracious and meanest spirit it can muster, our uncouth national leadership proposes to destroy the country’s one cogent opportunity to get some basic things rights about our history and the place of Aboriginal people in the future.

If the Native Title Act was a peace agreement after a war, then the Howard amendments are tantamount to a declaration of a new war. The Government is basically saying: we make the rules now, we don’t care what you negotiated in Federal Parliament in 1993, we don’t care about its historical importance and meaning, we just don’t even care. You people should never have even been given the chance to negotiate the Act in the first place.

The problem faced by Aboriginal people in 1997 is that the media, the politicians and the public are hearing complicated arguments for the second time around. The country spent 12 months debating Mabo in 1993. Nobody wants to have the same argument and turmoil again. There is a big danger that white Australians will just say: we don’t care, Howard is not all that bad.

John Howard may not be all that bad but his plans for the Native Title Act are legally and morally wrong.

Aboriginal people can rightly say to white Australians: ‘after all, Mabo is your law’

The most frustrating thing over recent years has been the failure of the people whose law Mabo is - the inheritors of the common law of England - to claim Mabo as the product of the genius of their legal heritage. Because the institution of native title is part of the law brought over to Australian by the subjects of British Crown.

Native title is Pauline Hanson’s English institutional and legal heritage. It was the ancestors of white Australians who brought with them, on their shoulders, the common law of England which recognises native title.

So are we going to celebrate this aspect of the country’s heritage? Or are we going to repudiate it? Are white Australians going to be unfaithful to their own law and its moral and legal prescriptions?

I have never heard John Herron or John Howard say that they support the Mabo and believe in its fundamental importance to the country. Yes they have said they accept the High Court decisions and so on. But have we ever heard them talk enthusiastically about it? After all it was not the decision of a lone magistrate from the remotest corner of the continent. After all it is not a decision of the Supreme Court of Transylvania. It is the highest court of Australia, charged with supreme judicial authority by the Australian Constitution, that has declared our law.

And Aboriginal people have constantly been told: you have to obey white law. You have to pay the fine, it is the white law. You have to go to jail, it is the white law. But when it comes to, you own the land, it is the white law - there is great reluctance and everybody wants to turn the law around. How can white Australians insist on Aboriginal people obeying the Rule of Law, when the white people do not obey the Rule of Law whenever it provides respect and recognition of black people?

We have already given away enough to white Australians.

[There are no records of the remaining of the speech]