by Henry Reynolds
White Australia can have unencumbered pastoral leases or reconciliation. It can't have both.
Richard Court does not give in easily. Having attempted and failed to over-throw the Commonwealth's native title legislation in the High Court, he has returned to the attack from a different direction, seeking to have a future federal Coalition government legislate to extinguish all native title on Pastoral leases over the continent's vast rangelands, including 38 per cent of Western Australia.
Late last week he said that a Coalition government was committed to that course of action and that Opposition leader John Howard had "accepted that extinguishment of native title was the only practical way to secure pastoral leases". Later reports suggested that the Opposition leadership group had over-ridden its own shadow minister for Aboriginal Affairs in relation to the question.
Howard's subsequent repudiation of Court's reference to a deal has failed to outline what a future, Calition government would actually do to make the Native 'Title Act "more workable".
However, the Government's Position on the pastoral lease question is only a little less hostile to the Aboriginal interest fli, despite the powerful personal advocacy of Aboriginal Affairs Minister Robert 'Tickner,which has gained little support within the ministry.
What the Government is saying is that it believes that pastoral leases extinguish native title and that this is the advice from its stable of tame lawyers in the Attorney General's Department.
More to the point, the Government has argued this line in court, and not just as a consequence of those legal opinions, but because that is the outcome that an overwhelming majority of the Cabinet desires. They do not want to bear the moral opprobrium of wiping out the Aboriginal interest, but would like the courts to do it for them. The tactics are different from those of Court and Howard, but the intention is much the same.
Debate on the pastoral lease question quickly catches in thickets of complexity. But the main points are clear. In the Mabo Case the High Court suggested that leases granted on Murray Island extinguished Native title because a lease by definition gave the lessee exclusive rights for a set period of time. More controversially, and with much less cogency, the court determined that native title could not be reasserted once the term of a lease expired. The Mabo legislation validated all existing leases, but left the question of a continuing Aboriginal interest for the courts to determine.
The critical Issue is that pastoral leases are not the same as the leases that had been issued on Murray Island. They are a unique and very old form of tenure that was created in Britain's colonial office in the late 1840s. They did not grant exclusive rights of possession to pastoralists and, as a result, some legal scholars have recently argued that technically they are not leases at all, but licenses to conduct activities associated with the pastoral Industry.
All colonial leases contained a reservation preserving the rights of Aboriginal traditional owners to continue to live on their land. Such reservations still exist in pastoral leases in Western Australia, South Australia and the Northern Territory. They were removed in ways that are still not clear in Queensland and NSW leases.
The reservations are of critical Importance. Since the Mabo judgement, the courts have begun to define their scope. Justice Robert French, the Native 'Title Tribunal president, and three Federal Court judges have all indicated that a reservation preserves native title -- it does what the 19th century British government officials intended it to do.
The question of the Pastoral leases presents mainstream Australia with a far greater political and literal challenge than the Mabo case and the attendant legislation. There are several reasons for this. We are dealing with an interest that was recognised by the Imperial authorities long ago and not, as with native title, one that many people believed had been conjured out of the air by the High Court.
The land in question is not vacant Crown land -- in effect, land that no one has yet found an economic use for. We are dealing with land that is in the possession of people with considerable political and economic clout, but whose industry was founded on generations of unpaid Aboriginal labour.
The alternatives are stark. If the Aboriginal interest on land held under pastoral lease is extinguished by Parliaments or the courts, the results will be the same. All chance of reconciliation will be jeopardised for a generation and perhaps forever.
White Australia can have unencumbered pastoral leases or reconciliation. It can't have both. If it chooses extinguishment the consequences will be far reaching. All the international goodwill following Mabo, all the favourable notices overseas, will be as nothing In the face of what will be seen as a ruthless grab for land reminiscent of the behaviour of European Imperial powers in the age of empire.
There can be no doubt that the present uncertainty is costly and unsatisfactory. The obvious solution is legislation, not to extinguish Aboriginal rights, but to affirm them on all pastoral leases in the country. With that in place we could get down to the serious business of negotiating a just and viable future.
Dr. Henry Reynolds is the senior research fellow in History and Politics at James Cook University.
Article published in "The Australian" 9/1/96
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Text marked up by Sarah Peckham, 12/5/96.