Are you confused about Mabo? And the new legislation? So was I. It’s complicated.
Here’s how it seems to me.
Mabo.
First there was Mabo.
Two things are important.
1 The High Court ruled that Aborigines and Torres Strait Islanders did have a right to land under Common Law.
2 The idea of terra nullius (that the land was vacant when the British arrived) was not only wrong, but based on racial discrimination.
Racial Discrimination Laws.
Second, there are the Racial Discrimination Laws which say that racial discrimination is illegal.
These laws were passed in 1975.
The Impact on Leases.
That means that some leases, granted since 1975 might be based on racial discrimination. This would happen if some atsi people had native title to that land.
Most leases may not be invalid, of course. But the issue could be answered by a court case.
A Quick Fix.
But, even though we were not in a hurry to sort out the Mabo case (it was in the courts for ten years), we are now in a hurry to sort out the consequences.
The “Peace Plan.”
Aboriginal and Torres Strait Islander leaders have suggested that the leases be validated conditionally. And let the courts test each one.
The New Legislation.
The Commonwealth Government does not want to wait that long. Money and investment is involved, after all.
At the urging of the States, they plan to suspend the racial discrimination laws and validate the leases.
Compensation?
The legislation proposes compensation.
Not for the history of dispossession, but for the removal of existing legal rights.
In other words, compensation for an act of racial discrimination.
Some Reflections.
What is being proposed appears to be the biggest single act of extinguishment of native title in our history.
Incredibly, it will happen in the International Year for Indigenous People.
What are the Core Values of a nation that insists on snails-pace solutions for minority rights, but lightning-pace for solutions for the rights of investors? All World Vision’s development wisdom suggests a slow process that permits consultation and people’s participation. Once again, as Ray Minniecon reminded us last week, this is being abandoned. If this is a solution, it is not one in which Aboriginals have participated meaningfully.
We should care about the risk and uncertainty that the Mabo decision gives to business investment. Compared with the uncertainties in the general economy the risk of Mabo does not seem very great. For example, the present fluctuation of the exchange rate would add much more uncertainty to business investment than Mabo.
The government is proceeding with this action. If nothing is done, it will become law.
