By Karen Fredericks
"In Mabo the High Court finally removed terra nullius [the premise that Australia was uninhabited at the time of its "settlement"] from Australian common law. I don't want to be part of a 1993 terra nullius, and I'm far from satisfied that this legislation is not precisely that".
So says Senator Christabel Chamarette, one of the two Green senators who have refused to give Prime Minister Paul Keating an unequivocal assurance of their support for the Native Title Bill 1993, currently being debated in the lower house, and destined for the Senate by mid- December.
While the PM has claimed his Mabo legislation will provide "ungrudging and unambiguous recognition and protection of native title" as defined by High Court, Chamarette told Â鶹´«Ã½ Weekly she believes the real motivation behind the draft legislation is the "re-stabilising" of the economic positions of mining and pastoral interests.
"This is not Mabo legislation", she said, "it is Mabo containment legislation, which has within it some pay-offs to Aboriginal people". The Greens have not been convinced that the bill offers more to Aboriginal people than it takes away.
The Greens (WA) senators have been pilloried by the government, by the Democrats and by some high-profile Aborigines such as the chair of the Aboriginal and Torres Strait Islander Commission (ATSIC), Lois O'Donoghue, for endangering the "fragile consensus" they say has been achieved with the bill. The Greens stand accused of using their possession of the balance of power in the Senate to "block" passage of the bill.
These criticisms have dominated establishment media coverage of the issue since the unveiling of the bill on November 15. Headlines such as "Blacks slam Greens for threat to Mabo Bill" (Australian, November 25), "Greens' stand threatens Mabo bill", "Mabo Greenmail in the Senate" (Sydney Morning Herald, November 26) and "Greens threat to delay Mabo" (Age, November 17) have been typical.
Chance to improve
But Chamarette maintains that they have not "blocked" nor "threatened" anything. "Our position is that we are not happy to support [the bill] in its current form. This does not constitute a block", she says. "We are simply putting the government on notice that it will have to give assurances to the Aboriginal people that are still negotiating for amendments that those changes can be incorporated, and that more consultation will be possible.
"Our view is that this legislation isn't good, but that we have an opportunity to try to improve it before slamming it, or not passing it, and we want to take every opportunity. If it's possible for the government to improve it so that we can pass it, we would love to — if it contains justice — but if it doesn't ..."
Much has been made of the criticisms of the Greens' position voiced by Lois O'Donoghue and Marcia Langton, a member of the Cape York Land Council. But the Aboriginal Alliance, a team of Aboriginal leaders who have been dubbed "the B team" since they recently began negotiations with the prime minister over possible amendments to the current bill, are among the many Aborigines who do not share O'Donoghue and Langton's strongly critical position. Their views, and the views of many others, have not been so widely publicised.
Michael Mansell, a spokesperson for the Alliance (which includes representatives of the Western Australian Aboriginal Legal Service, the Aboriginal Legal Rights Movement in South Australia, the Aboriginal Provisional Government, the NSW Aboriginal Land Council and the Queensland Foundation of Aboriginal and Islander Research Action — FAIRA), told Â鶹´«Ã½ that the Greens' position had provided the opportunity for at least another fortnight of negotiations with the government, although he emphasised that the framework was not one Aboriginal people would have chosen.
"We're dealing within the political process of the Australian government that's been here for 200 years", he said. "We haven't had authority over our own lands now for 200 years. We would prefer that neither the Greens nor the Democrats nor the Liberals nor the government had any say whatsoever over what we do with our land, but we don't, so we have to work within the political process."
Mansell said he believes the differences between the government's draft legislation and the Alliance's position are "not huge", and expressed optimism that they may be resolved within the two-week period obtained by the Greens' refusal to give immediate and unequivocal support for the bill.
"The main problem is that the way the provisions of the bill are worded, it would be very open for the tribunal to give far less than what the High Court would give", under the common law as clarified in Mabo, he said.
"The other problem is that we are concerned that where there is conflict between the bill and the rights of Aborigines to be treated fairly, as guaranteed by the Racial Discrimination Act, the Racial Discrimination Act may be overridden."
Everyone else's rights
Mansell said the Alliance believed Aboriginal people around Australia would not accept the bill in its current form and would insist on change. He said the Alliance was determined to get the maximum changes possible for the benefit of Aboriginal people.
"This is a bill that's designed to shore up the rights of everybody except the native title holders", he said. "Within that framework, we are trying to limit the rights that would be taken away from Aboriginal people, who have only just got them after 200 years.
"The common law leaves openings for the development of Aboriginal rights in the future, whereas this bill seeks to place a ceiling on those rights, and contain them in a box", he said. "What we're seeking to do is to increase the government's position to equate with the common law rights, as best we can, and if the deadline for this political process is December 6, we would hope that many more Aboriginal groups are involved by that stage to collectively make a decision as to which way we go on that date."
Mansell is dismissive of the view that the state legislation of Western Australian Premier Richard Court obliges Aboriginal negotiators to accept greater compromises on the federal legislation than they would otherwise have done.
"Cool heads should prevail, and none of us should be provoked into a knee-jerk reaction just because an outlaw like Richard Court is running around Western Australia with his gun pointed at the heads of Aborigines. That would be a mistake, although his legislation is obviously of concern to everybody."
Mansell warned that the federal government could not depend on support for the federal bill merely because it was better than the Court offering.
'Thousand strokes'
But Christabel Chamarette is not even sure that the federal bill is much better than the WA Land (Titles and Traditional Usage) Bill.
"The WA legislation blanket extinguishes all native title as soon as it commences operation. The Commonwealth legislation entrenches laws that may wipe it out by a thousand strokes. We're calling it 'death by a thousand strokes', as opposed to sudden death."
In fact, some native title holders will be deprived of their rights immediately upon proclamation of Keating's Native Title Act.
An example of this "sudden death" of common law rights under the proposed act is the case of the Wik people, who have maintained a continuous connection with their traditional lands, around 35,000 sq km of north Queensland, to the present day. Their land has been mined for bauxite by Comalco since 1957.
Earlier this year Comalco threatened to abandon plans for a $1.75 billion expansion if the Wik claims were not "resolved" by the federal government by December 31. As a result, Keating's Native Title bill makes specific provision for the extinguishment of rights which may have vested in the Wik people at common law following the Mabo decision.
"Under the Mabo decision the [Comalco] mining leases could be found to be invalid", David Byrne, deputy director of the Cape York Land Council told Â鶹´«Ã½ Weekly on November 25. "So the [Native Title] legislation removes the rights the [Wik] people may have had, even if the government handed the mining leases out in breach of a fiduciary responsibility."
Byrne says the Wik claim has played a part in shaping the bill, by highlighting possible problems with validation of leases where such validation might be in breach of a government's "fiduciary duty" — a special duty of trust referred to in this context in the Mabo case — toward Aboriginal people.
"If this [question of fiduciary duty] had not come out prior to this bill being passed, it is possible that matter would not have been included, and the Wik people would have had access to pursue before the courts the question of breach of fiduciary trust, and those leases may have had to have been reissued in consultation with the traditional owners", he said.
Chamarette says that the more she and her advisers look at the bill, the more serious difficulties they find with it.
Four principles
Over two months ago the Greens, along with the Democrats and the first Aboriginal negotiating team, were asked by the government for their "in principle support" for Mabo legislation. The three groups laid down four "bottom line" principles, which they said would have to be met to win their support.
The first was that the legislation would have to be consistent with the Racial Discrimination Act (RDA), and could not suspend its operation. Chamarette says this requirement has not been met.
"[The bill] is being moved as a special measure of the RDA which gives it equivalent status and means it's not subject to the RDA", she says.
The second thing they specified was a federal system of tribunals, and, she says, that has been "whittled down" to a system in which state and federal courts and tribunals can all have jurisdiction.
Thirdly, they required that native title be able to coexist with pastoral leases, not be extinguished by them. In perhaps one of the biggest incursions into the rights of native title claimants under the common law, the current bill provides that in any case in which a pastoral lease would be invalid because of native title, that native title will be extinguished.
The fourth principle was that there should be right of consent over mining. The bill does not give any such right, merely a "right of negotiation" which, says Chamarette, "can be overridden by state and national interests".
"My heart was in my mouth when we laid these down two months ago", Senator Chamarette said, "because I wasn't even sure then that the bill would be good enough for our support. But I thought, well, if it meets those four bottom lines that would be OK. It hasn't hit those four bottom lines, so we don't feel any moral obligation to support it in its present form.
"We're using our statement of our position as a leverage to bring it up to something that is supportable and that will bring the principles underlying the PM's second reading speech into practice.
"The concern is that the public who support this legislation, and are writing in to urge us to support it, think that it is going to fulfil the principles that the PM outlined in his statement. We are not confident that it will deliver those principles of groundbreaking federal legislation that come from the removal of the legal lie of terra nullius.
"What it's actually building on is the second part of the High Court decision, which said that governments have the right to extinguish native title and alienate land. This bill is a combination of measures that validates pastoral leases, validates title and therefore by saying validation can equal extinguishment, commences extinguishing native title."
Why the rush?
What is the rush? Why are the government, the Democrats, ATSIC and the media all so convinced that this bill must be passed "before Christmas"? Chamarette says the Greens had the bill for less than a week before they were called on to give it their unequivocal support. Many Aboriginal leaders and representatives have still not seen it, never mind the people at the grassroots.
The Greens' office has been flooded with letters urging them to support the bill. Each letter gives the same reasons for the urgency: "1) Strong momentum is already built up in support of a just response to the High Court judgment and there is a strong risk that this could be dissipated by delay; 2) Native Title tribunals should be established as soon as possible. This would allow the first cases to be heard away from the heat of a pre-election focus; 3) For strategic reasons Commonwealth legislation needs to be in force before or soon after the WA legislation. Without this the new WA law would enable the state government to wipe out a lot of native title before the Commonwealth legislation begins."
Chamarette says the letters are obviously part of a concerted campaign. She says these are the reasons the government is giving for the rush to pass the bill, but she does not believe they are the real reasons. She believes the government does not want close scrutiny of the bill, by either Aboriginal or non-Aboriginal interests.
Someone more suspicious than the senator might also suggest there is something more than coincidental about the deadline of December 31 set by Comalco for its $1.75 billion bauxite mining expansion, and the government's advice to NT chief minister Marshall Perron to "fast-track" MIM's Macarthur River lead, zinc and silver mining project, in preparation for a December 31 deadline for validation of mining leases under the proposed act.
Apart from improving the bargaining position of Aboriginal negotiators, the Greens' demand for greater consultation over the bill has also resulted in the referral of the bill to the Senate Standing Committee on Legal and Constitutional Affairs for three public hearings in Brisbane, Darwin and Perth in early December. Chamarette says she welcomes this recognition of the validity of the Greens' position, but that three one-day hearings may not be enough to fulfil their commitment to grassroots community consultation.
"There are people out there who have not been consulted, and who need to be consulted", she says. "There were major meetings at Red Centre at Eva Valley and in Canberra where the majority of people said, 'We do not want to negotiate. We do not like this legislation.' The group that did quite bravely stand out and negotiate, did it on the grounds that they knew that if they didn't get involved in the process, worse things would happen to their people.
"So I respect their right to negotiate and to step out and try to hold it back from the brink, because that's what I'm trying to do too. But I think the other people who haven't been happy about negotiating do deserve the right to be heard.
"We listen to all Aboriginal people, and they don't all have the same view. I listen to Lois [O'Donoghue] and I listen to Marcia [Langton]. They don't like what we have decided to do, at least they didn't at the time, because they don't believe the bill can be improved, maybe.
"But other people are very grateful for an opportunity to slow down the process and we are getting calls all the time to say, 'We've been waiting 200 years. Eddie Mabo didn't live to see it happen. What is the rush? Why can't we be consulted?' Of course the people that have been consulted aren't expressing that, because they've had that opportunity."
The big question which remains is: what will happen if the government remains intransigent on the big issues at stake — rights of consent/negotiation, extinguishment of native title by leaseholds, validation dates and the relationship of the new act with the Racial Discrimination Act? While the Green senators have the power to prevent the government getting its legislation up, as two individuals they have no power to force real change. Only the mobilisation of a huge movement in support of true land rights could do that.