” Aboriginal and Torres Strait Islander people will continue to call for a treaty and a strong Indigenous voice if nothing is done.
These calls only highlight the need for constitutional reform.
Australia cannot move forward while our founding document, our birth certificate, embodies our racist past. The stubborn stains in our racist Constitution must be erased.
- Eddie Koiki Mabo would expect nothing less.
- Eddie Koiki Mabo was a great Australian.
We can find the Mabo spirit within each of us, and work together to build a great Australia, free from racism, honorable and just.”
Part 2
“Last month at Uluru, in the spirit of constitutional conventions from which we had previously been excluded, many Aboriginal and Torres Strait Islander people gathered.
Their one page document, Uluru Statement from the Heart, issues a series of challenges to the Parliament and the people of Australia.
- It calls for constitutional reforms to empower our people and take a rightful place in our own country.
- It calls for the establishment of a First Nations Voice enshrined in the Constitution.
- It calls for a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.
A treaty or agreement, whether one or many, would be an acknowledgment flowing from the Mabo decision that terra nullius is a discredited, outmoded legal fiction and that this land was taken from Aboriginal people.”
Senator Patrick Dodson on June 16 delivered this year’s 2017 ANU Mabo Commemoration Oration at University House. The Mabo Commemoration Oration was held to recognise the 25th anniversary of the Mabo ruling.
In June 1992, the High Court of Australia recognised that a group of Torres Strait Islanders, led by Eddie Mabo, held ownership of Mer (Murray Island). In acknowledging the traditional rights of the Meriam people to their land, the Court also held that native title existed for all Indigenous people. This landmark decision gave rise to important native title legislation the following year and rendered terra nullius a legal fiction.
Senator Patrick Dodson is a Yawuru man from Broome in Western Australia. He has dedicated his life work to being an advocate for constructive relationships between Indigenous and non-Indigenous peoples based on mutual respect, understanding and dialogue. He is a recipient of the Sydney International Peace prize
Image above : On display at Parliament House Canberra in a careful hand with coloured pencils, Eddie Mabo drew this map in the shape of the Island of Mer, noting the family names associated with tracts of the Island, including his own family name.
Full Oration
Thank you very much Vice-Chancellor Professor Brian Schmidt and thank you for the Welcome to Country. I too join in the appreciation of the Ngunnawal and Ngambri people for their welcome to their lands.
It is a great honour for me to be here at the Australian National University tonight to deliver a speech in honour of the late Eddie Koiki Mabo.
- Mr Mabo was a man of history.
- He celebrated his Mer and Torres Strait Islander history.
- He made Australian history.
So it is to history that I will turn to start my remarks.
On 26 January 1788, the British flag was raised at Botany Bay.
The land, now part of the City of Sydney, was the territorial property of the Gadigal and Bidigal people of the Eora nation. It was held and looked after by them, for countless generations.
With a cheer and a tot of rum, to the sounds of fife and drums, the colony of New South Wales was proclaimed.
Over time, other colonies were established in other parts of Australia or by separation of their territory from New South Wales.
• Queensland was one of those.
Over time, the boundaries of the Queensland colony were stretched to include offshore northern islands around 1859.
The lines on the map between Papua New Guinea and Australia included the Murray Islands, the largest of which is Murray Island or Mer.
- In 1912, the Island of Mer was declared a Reserve under the Land Act 1910 (Qld).
- In 1936, Eddie Mabo was born in Mer.
- In 1982, Eddie Koiki Mabo and four other Murray Islanders commenced proceedings against the State of Queensland.
They claimed ownership of parcels of land on Mer as the holders of native title under their customary law.
This litigation, bearing the name of the man we commemorate tonight, transformed the modern Australian common law.
• The case changed our History.
• For the good. On the first floor of our Parliament, I walk past a display of foundation documents of Australia’s law and society.
This week I watched a group of school children walk through the area on their tours of Parliament House, under a banner that reads, “Parliament is the law-making body which determines the rules of the society by which people live.”
A couple of young boys were looking at a case where a page out of an old-school notebook was on display.
In a careful hand with coloured pencils, Eddie Mabo had drawn the shape of the Island of Mer, noting the family names associated with tracts of the Island, including his own family name.
On the same floor, there are other important documents and paintings on display: The Yirrkala bark petition, the Barunga petition, the Kevin Rudd apology.
Each of these artefacts talks to our most significant national historical challenge.
How can we recognise and acknowledge the fact of Aboriginal and Torres Strait Islander prior ownership of this land we now call Australia?
Mr Mabo’s map and the petitions call for all of us to recognise and acknowledge the fact of occupation.
• to re-think the received colonial settler narrative. They remind us of the exertion of force by and on behalf of the British authorities.
- The fact is: the British did not ask permission to settle.
- The fact is: no-one consented, no-one ceded.
- The fact is: the judiciary and the legislature have become less generous since The Mabo ruling.
- The fact is: we need an agreement or treaty to settle not only the ongoing legacy of terra nullius but also the legacy of its existence.
The first peoples were in this land as owners and governors of their respective countries before and when the colonists ‘arrived’ and began to gradually occupy their territories and rule over them. Today those native title holders under the Native Title Act are evidence of their descent from their ancestors and are the living testimony of their prior occupation of their lands and waters.
They and their people proclaim continuing occupation. This land was not, and is not, terra nullius.
The only thing that threatens this is the application of extinguishment written into the Native Title Act. It is more sinister than its existence as a legal mechanism, because in most cases it requires the consent of the very people that hold the Native Title.
This is neither honourable, nor generous.
This is treachery and brings shame to the Mabo name. It belittles the vision and motives of Mr Mabo and the other families who fought and won a seminal victory in the High Court.
The Chief Justice of Australia who heard the Mabo case, Justice Sir Gerard Brennan made this determination on 3rd June 1992 :
- The common law of Australia rejects the notion that, when the Crown acquired sovereignty over territory which is now part of Australia it thereby acquired the absolute beneficial ownership of the land therein, and
- accepts that the antecedent rights and interests in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty.
- Those antecedent rights and interests thus constitute a burden on the radical title of the Crown.
His decision in the Mabo case ruled that:
• the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mer.
Rejecting the notion of “terra nullius”, native title was found to have survived the acquisition of sovereignty.
Of course the High Court as an instrument of our Constitution cannot rule on the issue of sovereignty.
It took ten long years to resolve the Mabo claim. It is a poignant tragedy that Koiki Mabo did not live long enough to hear the decision of the High Court.
- To celebrate the recognition of what he knew in his heart and mind to be the truth
- His country was in Mer.
From our viewpoint in history, we see the Case that bears his name as a major landmark, a signpost for our future. But the road is long and at times the travelling is hard going.
The Mabo decision led to an eruption of controversy and alarm, in much of mainstream Australia.
Mabo was an affront to the security provided by the lie of terra nullius.
The Commonwealth Parliament, in 1993, under the Labor Government of Paul Keating, enacted the Native Title Act.
The Act sought to build on the common law as defined in the Mabo case.The integrity around this today raises serious questions.
In my own State of Western Australia, in which more than half of the land was legally unalienated and mineral rich, the Government objected. The State Parliament in Perth passed a law to extinguish native title from the moment of colonisation and challenged the Commonwealth Act.
The High Court upheld the validity of the Native Title Act and found the Western Australian law to be invalid.
On a personal note, that decision enabled the Yawuru people to pursue our own native title interests and reclaim our country. My brother Mick and I have good reason to be forever grateful to Koiki Mabo and his pioneering vision and courage.
Another major milestone took place in 1996. The High Court in the Wik case found that Native Title and pastoral leases could co-exist.
The pastoral leases were a feature of the colonial period, trying to reign in the peacocking of the best lands by squatters.
- There was at least some consideration by the Colonial authorities of the rights of Aboriginal people to travel over the leases.
- Such rights themselves became caveats on the pastoral lease until gradually modified.
The Wik case was a simple matter of concurrent and co-existing rights but with the Native Title rights yielding to the leaseholder if there is a conflict. The public reaction by some sectors was ill informed and disgraceful.
So the generosity of the Court already had begun to harden somewhat in the qualification they put on the notion of “concurrent and coexistent” rights.
The Government of Prime Minister John Howard, could have used this decision as a positive step, as an opportunity for advancing reconciliation.
The Howard “Ten Point Plan” led to the 1996 amendments to the Native Title Act, and in the words of his Deputy Tim Fischer, delivered ‘bucket-loads of extinguishment’.
That legislation was in my view intended to reinstate terra nullius or to remove what Justice Brennan called the ‘burden on the radical title of the Crown’.
As a sweetener they also delivered opportunity previously denied except under a statutory land rights Act.
They opened the opportunity for Agreement Making, which unfortunately is too often structurally tied to extinguishment. Indigenous Land Use Agreements could be negotiated under the Act whereby Native Title Holders and other parties could agree on the use of Native Title lands, for mutual benefit and economic development.
Far too often, the price of that opportunity has been too high, in my view, leading to the extinguishment of Native Title, forever and a day, leaving a lingering burden on the shoulders of the native title holders.
Nevertheless, hundreds of agreements have been negotiated and signed across the nation, especially in Queensland, but also in my state of Western Australia, where an ILUA Agreement for the Noongar people, had been hailed as a major landmark, a Treaty in all but name for the people of the South West.
In the Senate this week, the validation of Indigenous Land Use Agreements has been under debate. There is a tension between law-making in the Parliament, the decisions of the Courts and the aspirations of Aboriginal people to negotiate agreements that retain their rights.
The concept of separation of powers is not always empathetic to the sense of justice held by Aboriginal people.
The Noongar agreement came unstuck with the McGlade decision. With the recent amendments in the Parliament this Agreement will go back to the process of registration, for the Noongars to settle.
At every step, the Labor Party has pushed for consultation on these Bills, through a Senate Committee, through submissions and through consultations with representatives of the Native Title Representative bodies.
At every step, we have remembered the legacy of Koiki Mabo and understand the fact that Native Title rights, now recognised in the common law, should not be changed, extinguished or modified at the whim of Government.
They do not exist as a gift of the Parliament, or an act of largesse by the Government of the day.
Native Title rights are ongoing rights, with deep roots into our common law held exclusively by Native Title holders. Amending legislation should always require the ‘free, prior and informed consent of Native Title holders.
The Native Title Act, much amended over time, has evolved in complexity and function. Koiki Mabo would probably have some difficulty understanding how his vision has become brutalised by Parliament.
The Australian Law Reform Commission, in its 2015 review, Connection to Country, has identified key areas of reform that are yet to be implemented by the Government. Indeed, we still await a formal response from the Government to its recommendations.
From my own perspective, as a native title holder, and now as a legislator, I see five key areas where the functioning of the Act requires rework, not least to better align it to the vision of Eddie Koiki Mabo. These are, in summary:
- The need to rethink the presumption that an Agreement for alternative uses of native title land requires extinguishment of native title rights;
- The need to rethink the decision-making process required under the Act;
- The need to improve the fungibility for native title land without needing extinguishment or loss of communal title;
- The need to address the rights of compensation for the loss of enjoyment, access and use of Native Title lands.
- The need to change the onus of proof burden from native title applicants to the Crown
- The Native Title Act can be refashioned to shift the point of balance towards the ongoing rights, interest, needs and concerns of Indigenous Australians. Doing so would restore the Act to its fundamental purpose: to recognise and protect native title, in the interests of Indigenous Australians, and our shared national future.
Last month at Uluru, in the spirit of constitutional conventions from which we had previously been excluded, many Aboriginal and Torres Strait Islander people gathered.
They set out to deliberate and report back to the Prime Minister and the Leader of the Opposition, through the Referendum Council, on Constitutional recognition.
Their one page document, Uluru Statement from the Heart, issues a series of challenges to the Parliament and the people of Australia.
- It calls for constitutional reforms to empower our people and take a rightful place in our own country.
- It calls for the establishment of a First Nations Voice enshrined in the Constitution.
- It calls for a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.
From a Parliamentary perspective, we look forward to the report on those consultations from the Referendum Council at the end of the month. Hopefully working through these issues in the Parliament, in the time ahead, will take place in the spirit of constructive optimism.
To formulate a successful referendum outcome, especially in the next year a bipartisan, indeed, cross party consensus will need to be carefully shaped.
In my personal view, Constitutional reform, a treaty and a strong Indigenous voice have never been mutually exclusive—one does not come at the expense of the others.
• Of course I support an Agreement making process
A treaty or agreement, whether one or many, would be an acknowledgment flowing from the Mabo decision that terra nullius is a discredited, outmoded legal fiction and that this land was taken from Aboriginal people.
It would also pick up the opportunity that was lost when the Native Title negotiations focused solely upon land tenure.
I have never held the view that Mabo was only about land tenure. In fact when my views clashed with the then negotiators I was asked to discontinue any involvement in the process and dutifully left it to those who settled the issues with Prime Minister Keating.
There was no treaty when this land was colonized. In the future a treaty will be a strong step for a mature and harmonious nation. The work of Labor Governments in our States of Victoria and South Australia show it can be done.
Of course we need a strong Indigenous voice.
For too long Aboriginal and Torres Strait Islander people have been denied a voice, excluded from decision making processes about their own lives.
Indigenous people want to reset our relationship with government.
- We want to be heard.
- We have been calling for this for a long time.
Working to make a Voice effective within the processes of Parliament and capable of support from the whole Australian population in a referendum is a key challenge. A challenge Labor will consider carefully.
We look forward to more information on how the idea of an entrenched Voice can become a systemic, secure and successful legislative reality.
• We need to address the systemic racism that exists in our nation’s founding document, Australia’s Constitution.
We want our past to be acknowledged and we want to be involved in decisions about our future.
The Uluru Statement called for a First Nations Voice enshrined in the Constitution and a Makarrata Commission to supervise a process of agreement-making between governments and First nations and truth-telling about our history.
Many rejected the idea of any ‘symbolic’ acknowledgement in what they saw as a racist document, the Constitution.
This may well have been a statement from the heart.
It is time we acknowledged that Indigenous people were not included in the Constitutional Conventions that were held all over Australia in the lead up to Federation.
The Australian Constitution was written by people who thought Indigenous people were lesser beings; a dying race with no sense of land use and development.
- The dynamic of racism in Australia is institutional and it is structural.
- The foundations of racism are entrenched, persistent, in this nation’s founding document.
The question we need to work through is not about choosing between a treaty, a voice or constitutional recognition.
The question is whether Australia is able to move forward towards reconciliation —be that in the form of a Treaty, or an Indigenous voice enshrined in the Constitution —while the nation’s foundation document remains, in its DNA, a flawed and racist document.
I understand this because I was a member of the Expert Panel on Constitutional Recognition of Indigenous Australians, which was tasked to report to the Government on possible options for constitutional change to give effect to indigenous constitutional recognition and to assess any legal consequence that might flow.
In 2012, the Expert Panel delivered our report , which made a series of recommendations including:
- a statement of acknowledgment in the Constitution, relevant to the lawmaking power in indigenous affairs (new Section 51 A);
- a modification to the wording of the Commonwealth’s lawmaking power in
Indigenous affairs (s 51 (26);
- a constitutional prohibition on racial discrimination (new S 116A); and
- the removal of a provision that contemplates states disqualifying people from voting based on their race (s 25).
These recommendations recognise that the Government has the power to make laws about Indigenous people, but the laws must be beneficial and give the Parliament guidance.
It would be a mistake to consider this constitutional reform as merely ‘symbolic’.
Nothing about our Constitution is symbolic. There is not even a preamble that could point us to something symbolic.
The words in the Constitution reference powers that the Parliament uses to make laws.
They are words with real power. They are words that guide the Parliament in making laws and the Courts when they judge the validity of those laws.
Changing powers in the Constitution and giving clarification around how such powers can be used is not mere symbolism, “pretty words”.
Having an Indigenous voice enshrined in the Constitution, without amending the Constitution to remove racially entrenched ideologies, is puzzling.
It seems to assume that an Indigenous voice in the Constitution could be strong enough to challenge the entrenched structural racism which shapes the policies and laws that affect the lives of Aboriginal people without removing the racist elements of the Constitution.
We know these policies and laws. They are the policies of assimilation, of forced social and cultural change. These are the policies that continue to remove Aboriginal people from their families, country and culture.
These are the policies that have caused Aboriginal and Torres Strait Islander people to make up approximately one quarter of Australia’s prison population, despite making up just 3 per cent of the total population.
These are the policies which have led to Indigenous Australians dying a decade earlier than non-Indigenous Australians.
- Policies that repeatedly fail Aboriginal people.
- Policies that Koiki Mabo challenged with his life and would do so today if he were alive.
It is no coincidence that these policies exist alongside a constitution that is the legacy of a colonial settler narrative, a narrative that saw Aboriginal and Torres Strait islander people as lesser beings and Australia as a land belonging to nobody. If we are going to clean up the mess that racism has made in Australia, in the hope that we might one day achieve reconciliation, we have to do it properly and honorably.
The report of the Referendum Council at the end of this month deserves and requires weighty consideration. If the Referendum Council’s recommendations do not get broad parliamentary support it will fail and there will be no referendum.
If there is broad support then, it requires careful consideration of a Bill and Explanatory Memorandum that can pass through this challenging and complicated parliament.
It requires a question that can be put to the Australian people that will pass the high bar of a referendum.
Aboriginal and Torres Strait Islander people will continue to call for a treaty and a strong Indigenous voice if nothing is done.
These calls only highlight the need for constitutional reform.
Australia cannot move forward while our founding document, our birth certificate, embodies our racist past. The stubborn stains in our racist Constitution must be erased.
- Eddie Koiki Mabo would expect nothing less.
- Eddie Koiki Mabo was a great Australian.
We can find the Mabo spirit within each of us, and work together to build a great Australia, free from racism, honorable and just.
Kaliya. Thank you.
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