Federal government policies and initiatives

The Hon. Clyde Holding, M.P.

Clyde Holding is Federal Minister for Aboriginal Affairs.  This address was made to the Conference on Aborigines and International Law in Canberra in November, 1983.  It sets out the principles on which Federal Government Aboriginal policy is based and outlines the progress made in implementing these principles.

Thank you for the invitation to address this group.

I have always been pleased to note the constant and sustained interest and involvement that people, such as you, have maintained in ensuring that the public, and governments, are constantly reminded of Aboriginal rights -- including those rights supported by international law and convention.

GOVERNMENT INITIATIVES

The Hawke Government, since coming to office in March of this year, has achieved much for Aboriginal Australians.  Although not a comprehensive list, I might remind you of some of these:

• Funds made available to my portfolio for Aboriginal programs were increased this year by 28% (in spite of a time of financial difficulty)
• We have supported increased programs for
  1. Housing (ADC)
  2. Health
  3. Education and Training
  4. Legal Aid
  5. Community Works
• We have established task forces to concentrate on gaining real advances in training, employment and in housing.
• We have supported the Aboriginal Development Commission in its functions.
• The Minister for Housing and Construction recently announced a significant increase in funds earmarked for Aboriginal housing provided to the States under the Commonwealth/State Housing Agreement.

GOVERNMENT POLICIES

The Labor Government has clear policies in relation to land rights.  Unlike the previous government we are not afraid to set down our policies on land rights and to stand by those policies.

The Australian Parliament has clear constitutional powers to make laws for Aboriginal people ("People of Any Race" -- Section 51 (XXVI.) and "External Affairs" -- Section 51 (XXIV.) to name but two.  I believe that these powers were largely confirmed by the High Court decision on the Tasmanian Dams case.

It is the responsibility of this Government in accordance with its platform on Aboriginal Affairs, to ensure that positive steps are taken to secure land rights and to protect Aboriginal heritage.

State Governments also have the legal capacity to provide land rights and protect the cultural sites and objects of their Aboriginal citizens.

The extent of their willingness varies -- all States have enacted legislation which protects, to varying degrees, sites and/or objects;  some States have enacted or are preparing to enact legislation to achieve recognition of land rights.  But some have not, and maintain that they will not.

Despite some progress in individual States, none is in a position which satisfies completely our policy objectives.

I have summarised some goals with the following five principles.

1. Aboriginal land to be held under inalienable freehold title;
2. The full legal protection of Aboriginal sites;
3. Aboriginal control in relation to mining on Aboriginal land;
4. Access to mining royalty equivalents;  and
5. Compensation for lost land to be negotiated.

In addition to the principle on sites protection, I have further announced the Government's intention of ensuring that the sale of sacred objects will be prohibited and that sacred objects are returned to their traditional owners.

I do not underestimate the difficulties which confront the Commonwealth Government in pursuit of its objective to achieve a uniform approach on land rights throughout Australia.  It is already evident that the various States, regardless of their political persuasion, are keen to maintain their interest in all developments affecting land administration within their boundaries.  This is not to say that all States will resist the development of uniform land rights.  It is required, however, that consultation take place between the Commonwealth and the various State Governments and that this process will undoubtedly give rise to a variety of issues which will have to be addressed and resolved before the final objective can be reached.  Nevertheless, it is my view that in so far as the Labor States are concerned they, as much as the Commonwealth Government, are bound by the Labor Party policy as it relates to the development of land rights.  It is also the case that the Commonwealth Government takes the firm view that it has a primary constitutional responsibility in the field of Aboriginal affairs.  These two factors combined lead me to believe that we will achieve the objective within the lifetime of the first Hawke administration.

IMPLEMENTATION OF POLICIES

How does the Government intend going about putting its policies into practice?  The first fundamental point is that Aboriginals and, in particular, the National Aboriginal Conference, are to be fully involved in the development of necessary legislation.  The particular initiatives to date are:

• The establishment of a panel of lawyers, working under the direction of a steering committee, to work on drafting legislation and to assist me in negotiating with State Governments.
• The appointment of Mr Justice Toohey, the first Commissioner under the Aboriginal Land Rights (N.T.) Act, to review the N.T. Land Rights Act.
• Measures taken to ensure that adequate legal arrangements are made to excise parts of rural properties, on which Aboriginals live, to guarantee secure tenure.

PANEL OF LAWYERS AND STEERING COMMITTEE

The panel of lawyers, to which I referred, comprises two lawyers engaged by the N.A.C., two lawyers nominated by land councils, a N.A.I.L.S. representative, a nominee from my office, a D.A.A. nominee and a Q.C. appointed by myself.

The panel of lawyers has already met on several occasions and actively seeks guidance and direction from the steering committee.

There is no doubt that any steering committee which is established and which seeks to represent Aboriginal views will be considered by many as inadequate.  It is of course quite impossible to provide individual representation on such a committee for the host of Aboriginal organisations and communities that exist throughout Australia.  The Commonwealth Government has made it clear that the National Aboriginal Conference is considered to be the primary source of advice to the Government on Aboriginal affairs.  It is for this reason that the steering committee is comprised of the Chairman of each State Branch on the N.A.C. along with the National Chairman and the N.A.C. executive spokesman on land rights.  There are also represented four land councils, two of which are from the Northern Territory and which have had practical experience in the administration of their statutory responsibilities under the N.T. Land Rights Legislation.  The other two councils represented are the Kimberley Land Council of Western Australia and the North Queensland Land Council.  These two councils represent Aboriginals from two areas of Australia where significant developments in the field of land rights are about to take place.  The A.D.C. is also represented by its Chairman.

The panel of lawyers will draft national land rights legislation and legislation to protect sites and objects.  As a priority seen by the Aboriginal people themselves, the panel will in the first instance concentrate on the development of national legislation for the protection of Aboriginal sites and portable objects.

As the steering committee has proceeded to consider some of the policy issues associated with the development of national land rights, it is apparent that there are many issues upon which the Aboriginal people have a variety of views.  It is apparent also, however, that on some of the more significant policy issues there is consensus amongst those represented on the steering committee.  Perhaps one concern I have had and which I continue to place before the steering committee is that of time.  On the one hand there is clearly a need for consultation, and the need to gain an understanding of the various issues which are being considered.  On the other hand the constraints and demands of a parliamentary timetable cannot be overlooked.  The proceedings associated with the passage of legislation through the Parliament are such that some considerable lead time is required.  If the timetable for the introduction and passage of legislation on land rights by the budget sittings of 1984 is to be achieved, the legislation will need to be in draft form by early next year.  The strains and the difficulties that this will give rise to may well be significant but I continue to believe that, with the co-operation, not only of the Aboriginal people but of all those directly concerned with the development of this legislation, that timetable can be achieved.

WRECK BAY LAND GRANT

We are, as a related issue, also working on the development of legislation to grant inalienable freehold title to the Aboriginal community at Wreck Bay in the Jervis Bay territory.  It seems incongruous that land rights has not been achieved in an area which has been totally under the control of the Commonwealth -- I would hope that legislation, to grant freehold title to the Wreck Bay community, will also be introduced in the autumn sittings.

EXCISION ARRANGEMENTS

In June this year I made clear the Government's commitment to secure excisions for Aboriginal people resident on pastoral leases and for people living in fringe-camps near towns but having past residential attachments to land on those leases.

I have said on a number of occasions that the Hawke Government will in no way support or endorse the view that the Aboriginal people resident on pastoral properties anywhere in Australia should be offered less rights than the cattle or other live stock on those pastoral properties.

Any of you who have had the experience of visiting pastoral properties particularly in the Northern Territory and Western Australia, will be aware that it is no exaggeration to describe some of these communities as living in conditions equal to the worst conditions applicable in third world countries.  You will also know that there are those who believe that when it comes to a competition between the interests of the Aboriginal people and cattle in respect of waterholes, for example, the view is held that the cattle should override the interests of the Aboriginal people.  It was in this context that I wrote to the pastoralists in the Northern Territory seeking their co-operation to negotiate on a voluntary basis excisions for the Aboriginal people on pastoral properties.

I am happy to say that of the 24 pastoralists who were approached, some 19 have responded positively and negotiations and/or dialogues have now commenced which I am confident will result in property excisions being granted.  There have been one or two negative responses and without identifying those concerned perhaps I can demonstrate the sort of attitudes which are expressed by some property owners, more particularly in this case a foreign-based owner of a pastoral property in the Northern Territory.  Let me quote from a letter which he sent to the Minister for Community Development in the Northern Territory just recently --

"While we respect your desire to accommodate the Aboriginal group at ...;  we are obligated to our stock-holders to operate the cattle station in the most efficient manner possible.  We expect to have need for the water-point for the cattle operation during the upcoming drought.

"However, be will allow this group to remain on the station at their present location provided the Northern Territory Government fill guarantee the following:

1. That the group will be removed from ... station within two years after official notice is given by the company that the area occupied by the ... group is required for our cattle operation.
2. That the group will not be enlarged beyond a total of 40 individuals.
3. That the group will not kill or molest our cattle or horses in the vicinity of their encampment.
4. That the group will not allow their members to wander about outside their present encampment area or in any way interfere with cattle operation.
5. That the Territory Government will remove any facilities which it has or will install within two years after notification for the removal of the group and that it will restore the area to its original appearance.
6. That the group will agree to the above conditions in writing.
7. That the group will agree to pay a token rental for this location of $1.00 per year.
8. That the group will agree in writing that it has no Aboriginal claims to this or other company property."

As you would expect, the gentleman concerned received a letter from me in which I, in fairly succinct terms, pointed out certain facts as they now apply here in Australia, and invited him to reconsider his position and to negotiate an excision with the Aboriginal people concerned.

I am happy to say that I have now received a response from that company in which it has indicated a willingness to reconsider its position and I am confident discussion regarding excisions will soon proceed.

I have also asked Mr Justice Toohey, in his examination of the Aboriginal Land Rights (N.T.) Act, to examine methods of achieving excisions.

In Western Australia, there have been only three excisions on pastoral properties despite a number of outstanding requests.  The Western Australian Labor Government is now acting to rectify this situation and as a result 15 outstanding requests are now being accelerated.  Resolution of the applications is expected in most cases within three months.

REVIEW OF THE ABORIGINAL LAND RIGHTS (N.T.) ACT

Our predecessors had been discussing and negotiating what became known as a 10-point package with the Northern Territory Government which had as its aim the amendment of the Aboriginal Land Rights Act in the Northern Territory.  This became a fairly heated political exercise which led to no resolution of the issues involved and would appear to me to have alienated the Aboriginal people in the process.

It was clear to me that a similar exercise would not have been desirable and yet there was a need to consider a number of issues relating to the operation of the Land Rights Act.  I held the view that it would be more appropriate to appoint a person who is held in esteem by both Aboriginals and non-Aboriginals, particularly in the Northern Territory, who could independently inquire into and report upon those aspects of the legislation which were said to be causing some difficulties for various individuals and interest groups in the Northern Territory.

Mr Justice Toohey, first Aboriginal Land Commissioner, was such a person and I appointed him to examine and report upon the many matters which had been brought to my attention and upon which I required advice.  Mr Justice Toohey has recently returned from the Northern Territory where he has spoken with a very large number of people both black and white and who represent the whole spectrum of opinion on Aboriginal land rights in the Northern Territory.  I am expecting his report by the end of this month and that report will be made public so that people may respond to the recommendations which are contained within that report.  The Government will then consider what amendments, if any, should be made to that legislation.

I have also asked Mr Justice Toohey to report and recommend amendments where appropriate with respect to:

1. Meeting the needs of Aboriginals who are unable to claim land under the Act for sufficient land for community living areas;
2. Resolving administrative and procedural difficulties arising from the operation of the Act;
3. Reducing any detriment to Aboriginals which might result from the provisions and operation of the Act;
4. Reducing any areas of conflict or inconsistency between the administration of the Northern Territory (Self-Government) Act 1978 and the Act;
5. The extent and type of land available for claim by Aboriginals.

SUMMARY OF GOVERNMENT INITIATIVES

I believe that these initiatives clearly establish our commitment to Aboriginal land rights, and to the protection of Aboriginal culture.

We believe we have the constitutional authority and the parliamentary responsibility to achieve our policies.

SOVEREIGNTY

One of the central themes of this conference has been the issue of sovereignty as it applies in relation to the Aboriginal people of this nation.

I appreciate the feelings which underlie the Aboriginal requests and demands that Aboriginal sovereignty be recognised.  I feel bound to say, however, that as a practising politician of many years standing, that the question of sovereignty is one which will attract only minimal support from any Parliament of Australia.  I have said to Aboriginal groups in the bluntest terms on a variety of occasions throughout this country that the issue of sovereignty is not an issue with any prospect of success.  Those who support the Aboriginal cause in relation to this matter do so for the very best reasons and I respect the dedication of their advocacy.  But they are more likely to help win the struggle for justice for Aboriginal people by working for the achievement of Aboriginal land rights across Australia.  There is a real risk that the pursuit of the concept of a separate sovereignty for the Aboriginal community will only give aid and support to those in and out of Government who oppose any real progress for Aboriginal interests.

I do not consider the sovereignty issue a politically achievable objective.

That is not to say that the Parliament of this country, on behalf of the citizens of this country, cannot recognise the prior ownership by the Aboriginal people of the continent.  Nor do I suggest that the conquest of this continent by non-Aboriginal forces should be ignored or disguised as peaceful settlement.  Quite the contrary.  I hold the strong personal view that unless and until those matters are recognised both on a community basis and by way of formal recognition in the Parliament of Australia, this nation will lack integrity and credibility in the field of human rights in the eyes of its own citizens as well as of the international community.

All the policies which my Government is currently pursuing are based firmly in the recognition and acknowledgement of Aboriginal prior ownership and their dispersal and dispossession.

But let there be no doubt at all.  Aboriginal and Islander people are Australian citizens.  Their status is not in question.  Nothing will change that.  Aborigines are subject to the same laws, enjoy the same rights and have to meet the same responsibilities under the law.  That there has been an uneven and unfair application of the law in the past, and although in some respects there still is at present, provides all of us with a challenge more urgent and more capable of practical improvement, than any amount of discussion of questions of sovereignty.

CONCLUSION

This Government has set itself significant objectives in the field of Aboriginal affairs.  We can achieve our objectives with the co-operation of the States, the Aboriginal community and the community at large.  We must accept the possibility, however, that our actions will be challenged by some.

However, we are committed as a Government to land rights and cultural protection and we have a timetable in place to achieve our objectives.

It is for these reasons that I prefer not to discuss the details of Commonwealth land rights legislation, but would prefer to keep our options open as we progress towards the budget sittings 1984.

We recognise the fundamental importance to Aboriginals of land rights.  The restoration of land to Aboriginals is not only possible but a necessity.

We have an obligation, supported by international conventions, to guarantee the rights of Aboriginals and to provide the means so that they can equally establish their place as Australian citizens.