NACCHO Aboriginal Health #NRW2017 #Mabo25 : Mabo’s legacy lives on 25 years after landmark High Court decision

” Mabo establishes a fundamental truth and lays the basis for justice … Mabo is an historic decision – we can make it an historic turning point, the basis of a new relationship between Indigenous and non-Aboriginal Australians. 

I believe that Mabo gives Australia the opportunity to mature as a nation. Just as there is no economy without environment, development must include justice and human rights.

I am not supposing a utopian dream where in all parties are completely happy and negotiate the perfect solution, but a way ahead toward fair and just solutions which all parties can live with and which do not sacrifice the interest of one over the other.

Most important of all, in the Federal Constitution, it is necessary that there be a recognition of Sovereignty as by that recognition and resulting compensation so that Aboriginal people can regain our dignity and be treated as equal partners in any future development of our land.

Charles Perkins AO 1993 Alice Springs ” Creating an economic template for our  healthy futures.” see full extract part 1 below

He (Eddie) was a fighter for the underdogs, anyone who was deemed to be treated unkindly – he would step up and support them.

“He also became a voice for people who had language difficulties.

To me, he was like a hero of the people.

I was sitting at a hospital in the carpark and I heard on the radio that my dad had won and I went ‘Oh my God he’s won’

And then I just started crying and I looked at my boy and I thought, he did it, he finally did it.”

ON THE morning of June 3, 1992, Gail Mabo was feeding her five-month-old son in her car, when her father’s landmark achievement was broadcast around Australia. Part 2 Below Interview Townsville Bulletin

 ” The High Court’s Mabo decision, 25 years ago on Saturday, triggered widespread celebrations and fresh hope among Indigenous Australians and their supporters, and exaggerated, even vitriolic outrage from some politicians, business leaders, journalists and academics.

These critics foreshadowed various economic and social disasters, including Jeff Kennett’s grossly irresponsible scaremongering that “backyards were at risk”. That was never the case. Little, if any, of this predicted chaos eventuated. Quite the reverse.”

Reforms are urgently needed to the native tile scheme

Dr Bryan Keon-Cohen, AM, QC, was junior counsel to Ron Castan, AM, QC, throughout the Mabo litigation, 1982-1992 Canberra Times 1 June See Part 3 Below

 ” In 1992 the High Court decided in Mabo No 2 that customary native title could be recognised at common law, reversing the longstanding doctrine of terra nullius—that the land of Australia had belonged to no one when the British arrived.

In some quarters the decision was condemned for its activism, and the fear of judicial activism currently haunts debates about Indigenous constitutional recognition.

Many benefits have flowed from the Mabo judgment and the recognition of native title to land—these benefits have been both practical and symbolic.

I can answer the question posed in the title of my lecture in the affirmative.

The Mabo judgment was an agent for change and recognition, though many issues of Indigenous recognition and rights remain unresolved.”

The Mabo High Court judgment:

Was it the agent for change and recognition?

The 2015 Mabo Oration was delivered by Dr Dawn Casey PSM FAHA, (now NACCHO COO ) at the Queensland Performing Arts Centre, on 15 August 2015.

To View Website HERE or Download Speech

2015-Mabo-Oration-V 2

Part 1 :  ” Creating an economic template for our  healthy futures.” Dr Charles Perkins speech to NIBEC Business Conference in Alice Springs 1993 see full here

Pictured above Charles Perkins on the 3 June 1992 just after the Mabo judgement announced with then PR Colin Cowell ( Copyright Koori Mail first anniversary Conference )

As we are all aware this is The International Year of the World’s Indigenous Peoples which was launched in December 1992 in New York at the United Nations. It is a significant beginning to this decade of the 90o. the time is right, the scene is set, our people are ready and willing – this is or could be the decade for the renaissance of the Indigenous people in this country we now call Australia. History is  a guide but still a memory.

The future is ours to create. Today is our tomorrow. All societies have it seem to have one or two opportunities to fulfil their dreams and ours has arrived. We are on the threshold of our great national dream. The just, the good, the compassionate, the prosperous society.

The catalyst to move our people collectively towards this greater future has been granted to us the High Court in the recent Mabo decision. It could not come at a more opportune time, It is our once in a lifetime chance to recreate the society that we all desire.

As the Prime Minister stated in Sydney in December 1992, “We need these practical building blocks of change.

The Mabo judgement should be seen as one of these. By doing away with the bizarre conceit that this continent had no owners prior to settlement of Europeans. Mabo establishes a fundamental truth and lays the basis for justice … Mabo is an historic decision – we can make it an historic turning point, the basis of a new relationship between Indigenous and non-Aboriginal Australians. The message should be that there is nothing to fear or to lose in the recognition of historical truth, of the extension of social justice, or the deepening of Australian social democracy to include Indigenous Australians”.

Within this context the federal government must pursue, as they promised some years ago, the concept of a treaty.

This government must keep its promise to enter into a Treaty with the Indigenous people, particularly in this U.N. Year of the Indigenous People. This would demonstrate to the world that Australians – both Aboriginal and non-Aboriginal, can exist in cultural harmony and celebrate our common humanity.

History must not be a cross we should carry as a nation, into the future. Our children must inherit a society better than the one we inherited. A treaty is not so much a matter of dollars and cents, it is more spiritual and symbolic. It can be a catalyst which binds us together as a nation, respecting our past but building for the future. Australians must never forget that Australia was Aboriginal land and still is Aboriginal land. A Treaty is the appropriate mechanism for such negotiations. Naturally, such a Treaty can be one of the basic principles for discussions and conclusion with the framework of the recent and further Mabo High Court decision.

As is public knowledge, on 3 June 1992, the High Court made the great leap forward in recognising that Australia and the Torres Strait Islands were not empty “terra Nullius” before the British invasion of 1788, but were peopled by hundreds of Aboriginal nations, each with a distinct, rich and complex culture. The Mabo decision thus take recognition of Aboriginal and Torres Strait Islander culture at its starting point, and establishes that Aboriginal and TSI peoples have rights which have their source in traditional customary law rather than the British common law imposed on us in 1788. In this respect, the decision is empowering, as Aboriginal people are not starting with nothing and waiting for rights to be handed out piecemeal at the political him of the government of the day.

The Mabo decision represents an opportunity for some measure of justice to be gained for Aboriginal Peoples who are the most dispossessed of Indigenous peoples of all former British colonies, who are the most jailed race in the world and who have suffered and continue to suffer cultural genocide. However, Mabo is very limited in its “context”, it only addresses the narrow concept of native title and thus is defined in traditional areas.

It is also important to recognise the limitations of the case. Firstly, Aboriginal and TSI Sovereignty is a demand by Aboriginal people that the courts and Parliament of Australia recognise and acknowledge that the “acquisition” of sovereignty by the British in 1788 was illegal under English law at the time and also international law.

And that the acquiring of the land was by dispossession, genocide, ethnocide and it was consequently unlawful, illegal and immoral. Plus the demand that the government of Australia as the inheritors of the British Crown, compensate Aboriginal people for the loss and the damage done to our land and our culture. It is not a demand upon Australian individuals to surrender their land but rather a demand for recognition and compensation by the community as a whole. Sovereignity was not argued by the plaintiffs in Mabo, and therefore Commonwealth and State governments, according to the decision, have ultimate power to extinguish native title at will, subject to the Racial Discrimination Act 1975 (Cth).

Given these limitations, the hysteria and scare mongering currently seen in the media is put into perspective. Australians will not lose their homes and backyards. One of the most basic principles of Mabo is that once a State Government grants freehold title to a third party (ie. A person or company) , and native title to that area is automatically extinguished. In lay language, once any person buys a bit of land, native title is completely wiped out.

You can see that far from Australia being on the brink of a black coup d’etat, native title is actually quite limited and vulnerable.

The question then arises, where do we go from here ?. The notion of native title coinciding with other interests in land points us toward the answer.

Mabo is about working together, about balance and recognition of Aboriginal and TSI culture as a source of strength and wisdom from which all Australians can learn.

Mabo is also about self-determination – giving Aboriginal and TSI peoples the space and resources to enjoy our culture, work out our own solutions and control our own lives. The imposition of successive waves of government policy has not solved anything for us, but only created more problems.

Some of the most difficult aspects of post-Mabo relations will stem from competing land use in the form of resource development and native title. I do not believe that Aboriginal And TSI peoples are anti-development, if it is done in a way which respects them.

The history of conflict between mining companies and Aboriginal people has largely resulted form the formers deceit, lack of proper consultation and negociation, marginalisation of Aboriginal people from benefits flowing from projects undertaken on their land and disrespect for the wishes of Aboriginal people, for example; in relation to the protection of sacred sites.

Today, Aboriginal people must be equal partners at the negotiating table, we must have our say and governments and resource developers must listen and work out with us proper solutions to these vexed problems in a faire, reasoned and balanced way. I believe that Mabo gives Australia the opportunity to mature as a nation. Just as there is no economy without environment, development must include justice and human rights.

I am not supposing a utopian dream where in all parties are completely happy and negotiate the perfect solution, but a way ahead toward fair and just solutions which all parties can live with and which do not sacrifice the interest of one over the other.

Most important of all, in the Federal Constitution, it is necessary that there be a recognition of Sovereignty as by that recognition and resulting compensation so that Aboriginal people can regain our dignity and be treated as equal partners in any future development of our land.

Part 2 : My father has opened the doorway.

His legacy is not just ours, it’s for everybody

“I was sitting at a hospital in the carpark and I heard on the radio that my dad had won and I went ‘Oh my God he’s won’,” she said.

“And then I just started crying and I looked at my boy and I thought, he did it, he finally did it.”

An overwhelming sense of pride enveloped Ms Mabo who was 28 at the time.

And 25 years later, her father, Eddie Mabo, continues to make a huge impact on her family’s life and the Australian community.

Saturday, June 3, will mark 25 years since the High Court abolished terra nullius – meaning land belonging to no one.

Eddie Mabo, who died five months before the High Court ruling, championed the historic court case to establish the traditional ownership of Australian land.

Ms Mabo said she and her siblings had grown up listening to the significance of land rights.

“He (Eddie) was a fighter for the underdogs, anyone who was deemed to be treated unkindly – he would step up and support them,” she said.

“He also became a voice for people who had language difficulties.

“To me, he was like a hero of the people.”

However in what Ms Mabo called a “knee-jerk reaction from the Government”, a 10-point plan was put in place following the High Court ruling.

Ms Mabo said government conditions regulated land rights so that indigenous people had to “jump through more hoops”.

“But at the end of the day, it’s about how people approach that and how they fight,” she said.

“It’s a longer battle but it’s a battle worth fighting.

“My father has opened the doorway.

“His legacy is not just ours, it’s for everyone.”

Palm Island Mayor Alf Lacey said the 25-year anniversary was a reminder that the ruling had “done what it needed to do”.

“The only thing I’d like to see is that it doesn’t stop progress for our future generations, particularly for our kids,” he said.

“We want to share some of the wealth and employment opportunities.

“It’s really important it gives us recognition.”

Mr Lacey said Native Title agreements, once resolved, enabled jobs to be created.

“Adani is going to be a good opportunity for indigenous North Queenslanders,” he said.

“Everyone needs to take a breath of fresh air because at the end of the day we have to provide a future for future generations.

“We need jobs. We need to reassess where we are.

“The only way we’ll close the gap is to give our mob an opportunity, rather than meddling in the social issues – they’re not getting us anywhere.”

Townsville is invited to attend the region’s commemoration of the 25-year Mabo Decision on June 3 at Jezzine Barracks.

The free event will include a performance by the John Butler Trio.

Part 3 :Reforms are urgently needed to the native tile scheme

The High Court’s Mabo decision, 25 years ago on Saturday, triggered widespread celebrations and fresh hope among Indigenous Australians and their supporters, and exaggerated, even vitriolic outrage from some politicians, business leaders, journalists and academics.

These critics foreshadowed various economic and social disasters, including Jeff Kennett’s grossly irresponsible scaremongering that “backyards were at risk”. That was never the case. Little, if any, of this predicted chaos eventuated. Quite the reverse.

Illustration: Andrew Dyson Illustration: Andrew Dyson

The court’s decision – that Indigenous Australians, subject to proof, enjoyed traditional rights and interests in their ancestral land pursuant to their customs and traditions, and that British colonisation had not extinguished these rights – opened up a wide range of possible responses by governments, state and federal.

After 18 months of intensive negotiations, the Keating federal government delivered a three-part response. These were the Native Title Act 1993; an Indigenous Land Corporation and associated Land Fund; and a social justice package.

The social justice package disappeared without trace. The ILC continues to operate, purchasing properties around the nation, transferring title to Indigenous corporations and assisting with their management. As at June 30, 2016, the ILC had purchased 252 properties, totalling around 5.86 million hectares, and granted 191 to Indigenous corporations.

The Native Title Act has delivered valuable results, but it remains a limited, excessively legalistic and inadequate scheme. As many have stated, the act – a heavily negotiated compromise deal championed by Paul Keating – represents a clear failure by the Federal Parliament to exploit anything like the full potential of the Mabo decision.

Following the Wik decision of 1998, the Howard government’s amendments to the act, including then deputy prime minister Tim Fischer’s “bucket loads of extinguishment”, further entrenched these defects.

The scheme’s greatest failing – and a prime area for urgent reform – is that the extensive extinguishment regime, plus legal technicalities built into the claims process, means that Indigenous communities who have lost their traditional connection to their country due to colonisation, and who thus are most worthy of some land-related redress – those located along the eastern seaboard – are cut out of the scheme’s benefits.

Nevertheless, much has been achieved. As of March 2017, 388 determinations whether native title exists have been made by the Federal Court – 308 of those succeeded, in whole or in part. These successful claims cover about 32 per cent of the Australian land mass.

Following strident opposition during the first 10 years by respondents, including by governments of all persuasions, today, native title is a more accepted part of the political and business landscape: much of the 1992-93 fear and trepidation has abated. Thus, over the past decade, many more claims have been negotiated, not forced to trial, delivering savings in cost and effort (but not always time), and many more “consent” determinations of native title. This more co-operative engagement provides a firmer basis for co-existence on the same land between traditional owners and crown grantees into the future.

A second stream of achievement is the negotiation and execution of Indigenous Land Use Agreements between traditional owners and respondents as part of the claims process. Currently, 1172 ILUAs have been concluded under the NTA’s “right to negotiate” regime. These deliver a range of outcomes for all sides: to the (for example, a mining company) respondents, secure access to land and utilisation of its resources.

Recent noteworthy developments include the emergence of regional claims where several claimant groups join together, as one “cultural block” to make one claim to one large, consolidated area. Examples include the Akiba claim, finalised in the High Court in 2013. Here, 13 Islander communities joined together and successfully claimed a large area of seas in the Torres Strait. Akiba also decided, for the first time since 1992, that native title rights can include rights to commercially exploit the land, seas and resources.

A second regional claim concerns the Noongar people in south-west of Western Australia. There, six groups joined together and negotiated a resolution with many respondents by way of six ILUAs and a legislated settlement with the WA government. Significant financial and other benefits were involved.

These regional claims also provide an obvious and potentially fruitful land-base for pursuing domestic “treaties” or “agreements”, which might deliver a measure of self-government to the relevant native title owners. In this sense, 1172 “domestic treaties” are already in place. Further, such “treaty” discussions are now under way with the Victorian and SA governments.

Many problems remain with the native title scheme and reforms are urgently needed. The most glaring failure, to my mind, is the excessively onerous burden of proof imposed upon Indigenous claimants.

Among many suggestions for reform, including reversing the current onus of proof, are recommendations contained in a substantial report of the Australian Law Reform Commission, Connection to Country (April 2015). These are sensible reforms fully consistent with the spirit of Mabo and the NTAct: to recognise, protect, and facilitate the claiming of, native title.

The ALRC’s report was tabled in the Federal Parliament in June 2015. To date, the Turnbull government through the Attorney-General, Senator George Brandis QC, has failed to offer any response, let alone adopt these much-needed reforms. This rejection by silence is simply unacceptable, and is another example of elected politicians refusing to confront political “hot potatoes” – one major factor that triggered the commencement of the Mabo case in 1982.

As we celebrate 25 years on, this disinterest must be replaced by action. Otherwise, grand words about “closing the gap” become yet more cant and hollow hypocrisy.

Dr Bryan Keon-Cohen, AM, QC, was junior counsel to Ron Castan, AM, QC, throughout the Mabo litigation, 1982-1992.

 

 

 

 

 

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