Shadow Attorney General George Brandis, and Opposition leader Tony Abbott... they just can't help themselves on issues of native title.
By Chris Graham*
NATIONAL: When it comes to native title, a Liberal politician is like a kid in a candy store. He just can’t help himself.
First there was then opposition leader John Howard, who, in 1995, stood in front of a map of Australia and predicted that more than 70% of the landmass was under threat. Then deputy prime minister Tim Fisher; in 1998 he promised “bucketloads of extinguishment” of Aboriginal native title rights through amendments to the Native Title Act. And who could forget Philip Ruddock: in 2006, after the successful Single Noongar native title claim over Perth, he claimed the decision might give Aboriginal people control over the nation’s parks and beaches.
I think it’s fair to say “Mr White of Perth” still has access to his favourite swimming spot.
Which brings us to 2012. After the Gillard government announced it was moving towards “cautious” reform of the Native Title Act (and we’ll come back to “cautious” in a minute), shadow Attorney-General George Brandis did what Liberals love to do — the Chicken Little dance.
Brandis told The Australian he was “very worried” about the reforms. But in a week where Joe Hockey described the federal treasurer as “the scariest thing in Australia”, and in a Parliament where the opposition daily predicts the sky will fall in, what exactly does “very worried” mean?
My translation is that Brandis was bored, had nothing to do, and actually meant to say: “Meh, what’s for lunch?”
Unfortunately, this is what came out: “We are concerned that a significant rewriting of the legislation to change the meaning of good faith negotiation will inevitably introduce a great deal of uncertainty into what has been a reasonably settled and successful system. That uncertainty will be reflected, among other things, in the value of rural land, which will be, of course, extremely unwelcome.”
If by “reasonably settled and successful” Brandis means “fast asleep in the middle of a busy highway”, then I take his point. Because 20 years after Mabo, there are 473 active native title applications, versus 141 successful determinations. And there are 902 Future Act applications (which is an application to do something that affects native title rights).
By any reasonable person’s measure (and no George, I’m not accusing you of that), the native title system is clogged up, and not working. Or, in the words of National Native Title Council chief Brian Wyatt, Aboriginal people will still die waiting for their native title rights to be recognised. Hence the need for reform.
That’s not to suggest, of course, that what Labor is proposing looks anything like reform. Which brings me to Prime Minister Julia Gillard, out yesterday showing why she couldn’t lead her way out of a wet paper bag.
“Remember that scare campaign, remember how we were all going to lose our backyards, no one’s freehold title for their home was going to be safe,” she told ABC Radio. ”Conservative politicians (were) on TV screens producing maps to whip up fear.”
All very true, of course. But then this: “We’ve taken a decision about what we think can be achieved.” Which is only correct if you accept that politicians were elected to follow and not lead, and thus can achieve bugger-all.
Over 20 years, all of the predictions by the conservatives about the “wrath of native title” have been exposed for what they are — hot air. The Australian public knows this because, despite the Liberals’ rhetoric around mass dispossession, no single Australian has ever lost a square inch of their backyard to a blackfella under native title. Or any other regime for that matter.
The Libs have lost the wedge on native title. No one trusts anything they say about it. Labor should be capitalising on this. Instead, Gillard has delivered the spin but she hasn’t delivered the substance. Here’s what Labor calls “cautious” reform.
1. Native title grants will no longer be subject to income and capital gains taxes.
This is both a good and bad thing, good because taxing someone on compensation they’ve received after something was stolen from them is pretty offensive. Bad because some mining companies see native title payments as a great way to reduce their tax liability, hence their occasional eagerness to throw a scrap the way of a traditional owner.
2. The terms of “good-faith negotiation”, a current requirement of the Native Title Act, will be written into the legislation. This is also both a good and a bad thing. Good because it will bring intransigent miners and farmers (who are, admittedly, in the minority) into line, but bad because we haven’t yet seen the detail … and blackfellas trust Labor on the “detail” like children should trust lollies from strangers. Queue the arrival of the devil.
3. Negotiating parties will be able to ignore historical extinguishment of rights. Which is primarily a good thing, evidenced by the fact it has freaked out the National Farmers’ Federation. National vice-president Duncan Fraser told The Oz: “We are seeking guarantees from government that the setting aside of historical extinguishment does not extend to pastoral leases.” What the farmers are objecting to is that parties which seek to form an agreement be afforded more grounds on which to agree. Terrifying stuff, that agreement making.
4. Providing more flexibility in Indigenous Land Use Agreements (ILUAs), which is neither a good nor a bad thing, because ILAUs are already very flexible, evidenced by the fact more than 600 have been signed.
The truth is, Labor’s reforms are not really reforms at all. Gillard is simply fiddling at the edges.
So what do many Aboriginal people want? First, of those Aboriginal people who support native title (and there are many who do not) they want a reversal of the “onus of proof”, and if you’re across the basic concept of theft, it’s not hard to understand why. If I came into your house and pinched your tele, you’d probably feel pretty aggrieved if we went to court and in order to secure its return, you had to prove that you had a “continuing connection” to it. But that is precisely what is expected of Aboriginal people.
All they’re asking is that the law accept what everybody already knows — that Aboriginal people owned the land, that it was taken from them without their consent, and that those who took it — and those who benefited from that theft — should show cause why it shouldn’t be returned, or if that’s not possible, why compensation shouldn’t be paid.Secondly, what Aboriginal people want is what was promised them when THEY entered into good faith negotiations with the Australian people after their historic Mabo victory. From that process emerged a three-plank promise from government:
1. Legislation (tick, the Native Title Act);
2. A land fund for people whose native title had been extinguished (tick, the Indigenous Land Corporation).
3. A social justice package (no tick — it never came).
It is to the enduring credit of the Keating government that it delivered the first two. However Labor was bundled out of office before the social justice package — which included things like a treaty, recognition of customary law and an economic assistance package — could be progressed (you can read more about it here). Needless to say, in 1996 the Liberals promptly set about undoing the reforms Keating had begun.
There was hope when Labor returned in 2007, that Keating’s work would be revisited. After all, the ALP’s 2007 national platform, on which Kevin Rudd was elected, promised: “Labor recognises that a commitment was made to implement a package of social justice measures in response to the High Court’s Mabo decision. Labor will honour this commitment.”
Not a lot of wiggle room in that. But wiggle Labor did, by simply removing the promise from its revamped 2009 platform.
Which brings me back to Labor’s lack of leadership on this issue. What Gillard is offering is not “cautious reform”. It’s political cowardice. She’s dishing up the modern Labor version of social justice — all sizzle, no sausage.
Her betrayal — and that of her predecessor Rudd — is a repudiation not only of Labor’s stated core values, but of the work of people like Keating and former attorney-general Michael Lavarch in finally recognising the injustice of land theft in this country.
Keating may not have been popular, but at least he was passionate. Gillard, by contrast, is a robot.
If she wants to be taken seriously as a leader of conviction, and if she wants progress on Aboriginal advancement, she needs to get off her arse, get out into the electorate and explain why native title remains a white stain on a black past.
In other words, she needs to lead. Which, if memory serves me, was precisely what she was elected to do.
* Chris Graham is the managing editor of Tracker magazine.