The Joumal o.fIndigenous Policv - Issue 8

THE MABO LECTURE.

LARISSABEHRENDT-

The Long Path to Land Justice

In the yearssince the Mabo casedelivered the promiseof land justice, many factors have worked to prevent the expectationsit gave to Indigenous peopleacross from being delivered. This lecture will explore the barriers to achieving the vision of Aboriginal rights to land that were articulatedin theMabo case.These include the re-conceptualisingof native title as a regime to give certainty to non- Aboriginal interests,the romanticismof Aboriginal culturethat permeatedthe judgement and the fact that, under the judicial system. it is judges who determinewhat 'Aboriginal culfure' is. Intricately related to this issue is the way that native title, like other Aboriginal rights and interests,tends to polariseAustralians. This lecturewill posethe questionof why this is so and what this meansif real socialjustice is to be achievedfor Aboriginal people. So fundamentalwas the result in the Mabo case,many of us still remember where we were when we first heard that the High Court had overturnedthe doctrineof terra nullius and had found that Aboriginal rights existedin land. I was in the corridor of the law schoolthat I was studyingat, the samelaw schoolwhere my property classand briefly looked at the Gove Land Rightscase and was told that it had affirmedthe fact that Australianlaw did not recogniserights to land of Aboriginal people.We thenmoved on for the rest of the term to study the heavily protectedrights to land of non-Aboriginal people. Therewere threethings that made the Mabo casean importantmoment: It overtumed the notion that we as Aboriginal people did not exist; It recognisedIndigenous rights to land; and it providedan exampleof how laws that for so long had beenused as a tool of colonisationcould actuallybe a tool ofjustice. I want to exploreeach of thesethree themes in my lecturetonight and I am particularlygoing to focus on why it is that the first two propositions the

'I This paperwas presentedon 7'r'June.2006 at JamesCook University LarissaBehrendt is Professorof Law and Director of Researchat the Jumbunnalndigenous House of Leaming, University of Technology, Sydney. She has a law degree from the University of and a Mastersof Laws and SeniorDoctorate of Jurisprudence from the . Her current rcscarchis focusedon Indigenousgovernance and Indigenouspolicy issues.She is the author of Achie'"ing SocialJusticc and the award-winning novel. Home. She is a Director of thc Bangarra Dance Thcatre and the Sydney Writers Festival.Larissa also sits on the Board of the Muscum of ContemporaryArt. She is a Judicial Member of the Administrative DccisionsTribunal and tl.reSerious Off'cndcrs Review Council. Sheis alsoa columnisttbr the NationalIndiscnous Times.

lu-l Tne .llaho Lecture overturning of the doctrine of terrq nullius and the recognition of a native title - remain so contentioussince the decision and I also want to look at the extent to which the law has been usedto limit the potential of the Mabo decision and look at what possiblerole it canplay in achievingland justice and socialjustice for Aboriginal and Torres Strait Islanderpeople today.

I. The War on Terru Nullius

The reason why many of us remember where we were when we first heard about the Mabo case was becauseof the importance of the symbolic overturning of the doctrine of terrq nullius.I grew up in a country where the legal system did not recognisethe rights of my people to our land and was silent about our sovereignty. It was still the law of the land when I studied at universify and to those laws we remainedinvisible. In the decisionin Mabo, Australian law finally recognisedthat Indigenouspeople were actually here and that we had a system of laws and governance.It was also an important legal victory because the recognition of Indigenous presence and Indigenous governancesystems meant that the court had to find that Aboriginal people held certainrights, including rights to land and that in certaincircumstances, thoserights survivetoday. In the yearssince the Mabo case,many of our communityhave become disillusionedwith the way in which subsequentcourts have wound back the promiseof the Mabo decision.But the symbolicimportance remains. And it is true that the law no longertreats us as thoughwe are invisible. So why has the notion of terra nullius become the centre of heated debate?The basic argumentput forward in a new book is that terra rullius is a new conceptand so, when CaptainCook claimedAustralia, he did not do so as a resultof the doctrine.Instead, the doctrinecame to prominencein the work of historian Henry Reynolds- whose work has been the most attackedby the white-blindfoldview of Australianhistory - and it was this flawed work (so the argumentgoes) that misled the court. As such, the argumentgoes, the High Court must have been wrong when it overturned the doctrine and, by implication,the Mabo casewas wrongly decided.And much like the decision itself which led to a barrageof idiotic and unsubstantiatedfear-mongering claiming that people's homeswere in dangerfrom nativetitle claims,this tale of terrq nullius has also sparkedexcitement from the anti-Aboriginaland anti- rights brigade. Even legal commentatorshave joined the chorus. Professor David Flint was quoted in TheAustralian as saying that the farmersand miners 'who havepaid for Mabo, and are still paying', may havegrounds to sue.It has all the hallmarksof the hysteriawhipped up by white supremaciststhat Mabo would takeeveryone's back yard. However,as with the original decision,the hyped-uphysteria over lerra ntrlliuscan be dismissedwith a simplereading of the Mabo case.Terra nullius describesa legal fiction that treats Aboriginal people as though they were invisible and had no sovereignand, as a result, no recognisedrights to land, wateror otherresources or to self-governanceor sovereignty.

t04 Larissa Behrendt

And while the court may have said that the doctrine was overturned, what they really did in the judgement was overturn a case called Cooper v Stuart. It was this 1889 case that held that in coloniesthat were practically unoccupied,without inhabitantsand without settledlaw, Indigenouspeople's rights were not recognised.(It basically reinforced the terra nullius doctrine but didn't call it that).In usingthe term terra nullius in 1992,the court was usinga new term to describea long establishedattitude in dealing with Indigenous people.It is like sayingthat any slaughterof peoplebefore the 1930scould not be called 'genocide' becausethe word did not come into the languagein its currentuse before that time. Like 'genocide',terra nttlliusis a new term for an old concept. The real beef in this debate about terra nullius seemsto be with Henry Reynolds,but - and no offence to Henry - while the court did referencehis work in two places,this can hardly be characterisedas reliance.Sir Anthony Mason,who was the headof the High Court at the time of the Mabo decision, evenconfessed to not havingread any ofHenry Reynolds'books. To assert Reynolds' influenced on the court also fundamentally misunderstandsthe legal process,namely, that judges look to what the law is and refy on casesand precedents,like Cooper v Stuart.They are not deciding who was right or wrong in history. They are balancinglegal rights basedon what othercases tell them they canand cannotdo. Sir Anthony Mason also denouncedthose commentators who speculate abolt terra nullius and has assertedthat the key issue in the Mabo case was whether,when the British claimedAustralia, they did so absolutelyor whether they had to recognisecertain other rights that might exist.The court found that the British did have to take the land with the rights of Aboriginal people attachedto it. In the sameinterview, Sir Anthony Mason also noted that the contentionthat the doctrineof terrq nullius damagedthe nationwas 'absolutely absurd'.He said:

We were brought up on the footing that the Aborigines were people roaming the continentwho never remainedin one particulararea without any relationshipwith thc land. Well. of course.we now know that's all wrong.

When askedwhy the High Court seemsto get so much criticism for the Mabo and Zifr decision,the former Chief Justicenoted that the antagonism seemsto come from people 'who are against a just society, who want to repudiate that the state has a responsibility to assist' those who are disadvantaged. If sucha grossmisreadin-e of the importanceof terra nullius inthe Mabo casecan causesuch hysteria. it really doesraise the questionas to why this is so?The answer,I can guarantee.rvill say more aboutthe way non-Aboriginals see their history than it will say about Aboriginal people.At its heart, this quibbling overteva nullius is anotherattempt to Llsea semanticdebate to hide an historicaltravesty. We havewitnessed the denialsof frontierviolence against Aboriginal people.with historiansdebating * hetherthe accountsin police reportswere

1rt: The Mabo Lecture more valid than the accounts in squatter's diaries and the oral histories of Aboriginal people. We had to listen to the semanticdebates about whether the children taken from their families - and living with the legacy of the removal 'removed' policy - were 'stolen' or for their own good. And while Aboriginal peoplehad to come to terms with the psychological,emotional and sometimes physical trauma of those experiencesof being taken from their families or having children taken from them, they had to endure a public debate about 'cultural whethertheir experiencescould properlybe describedas genocide'or not. I have never believed that these debates amongst academics and 'the 'the commentators,often called history wars' or culturewars" abOuthow to label and quanti$ our experienceshave ever altered our view ofhistory as Aboriginalpeople. Their debateshave not invalidatedthe oral historiesthat we have been told by our Elders and they have not changedone iota the way that Aboriginalpeople live eachday and experiencethe legaciesof the very policies that are the subject of those semantic arguments.And that is becausethose debatesare not about Aboriginal history. They are about white identity. These debates are about the story that non-Aboriginal Australians want to tell themselvesabout their country, and, more specifically, they are about the story thatwhite peoplewant to tell themselvesabout this country.And it seemsthat the latestmanifestation of these'history'or'cultural'wars,is the debateabout whether Australia actually was terra rutllius the way the High Court described in the Mobo caseor not. Native title has always been seen as threateningto Australian property interests and Australian values. On January 22, 1997 the front page of the Sydney Morning Herald had news of a tragic fire in Melbourne. The photographsshowed flames licking a house,charred bicycles and men fighting to save properfy. The newspaperswere able to play an angle that evoked sympathyfrom Australians. The loss of property was emphasizedin its human elements.On the left of the news of the fire was anothernews item. It was headed'Aboriginesset strong demandsfor Wik talks'. At that time,the'lltik talks' were the latest battlegroundin the fight by Aboriginal people for the recognition of their property rights by the laws, institutions and people of Australia. The media coverageof the l(ik casewas cloaked with a politically loaded perspective.The SvdneyMorning Herold ran the headline that the Wik 'A decisionwas Decisionfor Chaos.'It printeda photographof a farmer,a Mr. 'Family's Fraser,looking forlomly down at his land under the headline land dream turns into nightmare.' Although he claimed to be a strong supporter of 'confused' the Aboriginesand said he believedin reconciliationhe was by the decisionand Mr. Fraser'sreaction was one of bewilderment:

I can't believethesejudges made that decision. It's not a decision.I can't seethat we have made very much progress.We are obviously going through another period of

t06 Larissa Behrendt

indecision and I am not sure how much ofthat sort ofpunishment people can take.

What the coverage in the media showed were three contemporary perceptionsin the public consciousness:

o That the loss of properfy houses,bicycles, cars - was seen as a tragedy when (white) people lost their homes, but when Aboriginal people lose a property right it doesnot have a human aspectto it; o Aboriginal people, in getting recognition of a property right, are seen as gaining something (making 'strong demands') rather than having recognizedsomething that already exists and should be protected;and . Aboriginal property interestsare seenas threateningthe interestsof white property owners. The two cannot co-exist. Recognition of Aboriginal rights leadsto 'uncertainty'and 'indecision'.

These three perceptions - that there is no human aspect to Aboriginal property rights; that Aborigines and Torres Strait Islanders are getting somethingfor nothing; and that white property interestsare more valuablethan black ones- are not just playedout in the headlinesof that Sydneynewspaper. Their influence can be found pervasively throughout the history of colonised Australia, starting from the day that the British declaredAustralia was their's on the basisof a legal fiction. These perceptionsare found most strikingly in how Australian law has operated separatelyfor Aboriginal and non-Aboriginal peoples. For most Australians, the right to own property and to have properfy interestsprotected is a centraland essentialpart of their legal system.For Aborigines,Australian law has operated to deny properly rights, acknowledgethem sparingly, and thenextinguish them again.

II. Native Title Defined by Aboriginal Culture, But Who Defines Aboriginal Culture?

Along with the over-turning of the doctrine of terua nullius, the Mabo casewas also a landmark decision for it's finding of a native title held by Aboriginal people. One of the great promises of the court when it first formulated the native title right was defining its content by the laws and customsof Aboriginal people. Readingthe judgment, it appearson its face value to say that the laws and customsof Aboriginal people would be best definedby Aboriginal people themselves.After all, it is we who understood what thosepractices may have beenor how they have developedover time to be part ofour vibrantand contemporaryIndigenous cultures. But we have moved a long way away from that original promise to recogniseAboriginal laws and customsas the definerof the scopeand content

-James Woodford. Family's land drcam turns into nightmare. S|'dne1, Morning Herald. TuesdayDecember 24. 1996.At p.l. The .llabo Lecture of nativetitle. The Wik case recognised that a native title right can coexist with a pastorallease if the exercise of both interestsis not inconsistent and there has been no intention to extinguish the native title interest. However, whenever there is a conflict between the use under the lease by the pastoralist and the Indigenouspeoples native title interest, the interest of the farmer will always trump. As with the result in the Mabo case,the decision in lhe lltik caseignited public hysteria that was further fuelled by the deceitful misrepresentationsof industry and government. Government propagandascared farmers by telling them that Aborigines could claim their land and the Wik decision became a focus for the policy platform for the Howard governmentwhen it was elected in 1996. By that time, native title had becomeentrenched in a legislative framework through the Native Title Act 1993 (Cth). The Howard government's responseto the Wik casewas laid out in their proposalto implement a'10 point plan'. This plan originally suggestedthe extinguishmentof native title interestsby convertingthe leaseholdinterest into a freehold interests- a windfall to the farmers since they would gain freehold title of land they currently hold as leasehold(i.e. they would get somethingfor nothing).The cost of conversionand any compensationthat would become payabledue to an extinguishmentof native title was to be coveredby the public purse. The philosophy behind this is clear - native title reform is about ensuringthe security of title for non-Aboriginal landholders. Prime Minister John Howard ensuredthat non-Indigenoussectors of community were informed and consultedabout his attempt to erode Indigenousnative title rights through the Native Title AmendmentAct I998.His addressto the Longreach community meeting in Queenslandis revealing. He beginswith his ideologyof the 'white manon the land', the rural idyll:

... although I was bom in Sydney and I lived all my life in the urban parts of Australia, I have always had an immense affection for the bush. I say that becausein all of my political life no charge would offend me more than the suggestion that what I've done and what I've believe in has not takenproper accountofthe concemsofthe Australianbush.3

There is no such concernfor Indigenouspeople who clearly do not fill this same sentimental, nationalistic ideology. He then proceeded to rank the rights of one over the rights of the other.'...the plan the federal govemment has will deliver the security, and the guaranteesto which the pastoralistsof Australiaare entitled...'- When finally passedthrough compromisesin the Senate,the Native Title

l Transcriptof the Prime Minister, the Hon. John Howard MP, "Address to Participantsat the LongreachCommunity Meeting to Discuss the Wik l0 Point Plan, Longreach.Queensland." Reproducedin ParliamentaryJoint Committee on Native Title and the Aboriginal and Torres Strait IslanderLand Fund. CERD und the Native Title Amendment,:|ct 1998.Parliament of the Commonwealthof Australia. 2000. Atp.276. 1 Howard. Atp.276.

t08 Larissa Behrendt

AmendmentAct 1998(Cth) furthereroded native title interests,overlooking the fact that Indigenouspeople in the debatesaround the original native title Act had concededrights in order to gain the ability to have control over land in which therewas a nativetitle interest.The right to negotiatewas consideredto be essentialby Indigenouspeople at that time and was weakenedby these amendments.This is strong evidence that so-called 'special laws' for Aboriginal and TorresStrait Islander people are actuallylaws for differentand lesser protection. It is also evidence of the proposition that Indigenous conceptionsof rights and political aspirationsare toleratedonly to the extent that they do not upsetthe power structureswithin the legal system. While the legislative framework that was put in place after Mabo focusedmore on ensuringsecurity for non-lndigenoustitle holders than for facilitating the claims of native title claimants,there was also an erosionby subsequentcourt casesas the make-upof the High Court changedand, through yearsof Howard governmentappointees, became more conservative. A key disappointmentfor Aboriginal people in the developmentof native title jurisprudencewas the Yorta Yorta case.It highlightedthe fact that evenwhere Indigenous culture is alive and vibrantand exist in a contemporary form, courts could view Aboriginal culture as having vanishedinto the ether and not exist in a way that gives rise to a nativetitle right. This is an outcome that is frustrating and insulting to Indigenouspeople who live in strong communities,bonded by history,kinship, language and sharedcultural values. It is an outcomethat also highlightsthat nativetitle is not defined by the laws and cultureof the Aboriginal peopleas the Mobo casepromised, but insteadis defined by what non-Aboriginal people think Aboriginal laws and cultures should look like. This non-Aboriginalview often treatsAboriginal culture as though it should exist in a vacuum,often looking for the practices that would havebeen expected to exist 200 yearsago. No other culture on the face ofthe earthis expectedto remain in a time capsule.No one suggeststhat the pastais not Italian simply becauseit is cookedin a microwaveor that the English legal systemis no longerEnglish because they don't hangpeople on the gallows any more. In fact, the sad irony is that while very few Australians have close contactwith Aboriginal people,many seemto feel that they know a lot about Aboriginal culture. The ignorance surrounding Aboriginal culture was displayedin recentmedia coverage and political posturing about the high levels of violence in Aboriginal communities. When a prosecutor'scomments about the endemiclevels of sexualabuse in Aboriginal communities sparked a media frenzy and self-righteousoutrage by some politicians.many of us werewondering why the decadesof reportshighlighting this issue in Aboriginal communitiesacross Australia never had a similar reaction. Re_qardless,and however the issue was raised, what ensued was instructiveas to why. with all the best intentionsand good will of people working on the ground,governments do not meet their responsibilitiesand in factexacerbate the situation. The Minister for Aboriginal Affairs, Mal Brough, was to blame the

1rt9 The Mabo Lecture

Northem Territory Governmentfor not putting police into communities where violence was endemic. He was absolutely correct in asserting that any community of 2500 people with no police force would have law and order issues. However, there are many other factors that contribute to the cyclical poverty and despondencywithin some Aboriginal communities that create, over decades,the environmentin which the social fabric unravels and violence, sexual abuse,substance abuse and other anti-socialbehaviour becomes rife. Governments of all levels continue to under-fund Aboriginal communities on basic needs. Health services, educational facilities and adequatehousing serviceshave never been supportedin thesecommunities and instead of co-ordinating their efforts, governments engage in the slanging matches that occurred between Mal Brough and Northem Territory Chief Minister, Clare Martin about who was at fault. Brough said it was a law and order issue;Martin said it was a housingissue. Both were right; both levelsof government have been negligent. It is estimatedthat the basic health needs of Aboriginal Australians is under-fundedby $450 million. This attempt to shift the blame is referred to as 'cost-shifting' and it is a feature of many issues within the Aboriginal Affairs portfolio where financial responsibility is shared between state/territorygovernments and the federal government.The attempt to avoid responsibility (or shareresponsibility) meansthat Aboriginal people are the losers. One sure sign that govemments were not going to take any responsibility for fixing the problems that they were so happy to chest beat about was the quick assertionthat the issuedidn't need any money thrown at it. This was a clear indication that they were uninterested in addressing their neglect of basic servicesand infrastructure- the root causesof the problem - and were insteadgoing to grandstandabout what everyoneelse should do. And sure enough, soon enough,the blame startedto be put squarely on the shouldersof Aboriginal peoplebecause, it was asserted,this behaviourwas cultural. Across the country,for as long as theseissues of violenceand sexual abusehave been issues,we have consistentlysaid that this behaviour is not cultural. There is nothing in our culture that condonesabuse of women, boys and girls. And we have been consistentlytelling the judiciary to reject the so- called 'customarydefence' whereby Aboriginal defendantsclaimed that sexual assaultor physical assaultare part of our culture.We have consistentlyraised questions when courts have valued cultural practicesthat violate the rights of women and children(such as promisedmarriage) over the rights of the victims. This advocacythat was designedto educatethe judiciary was then hijackedby politicianswho startedto say that customarylaw shouldbe outlawedas though it was 'customarylaw' that was the problem. Firstlv. the advocacyby peopleworking to educatethe judiciary never included the blanket prohibition of customarylaw from the factors a judge can take into accountwhen he or shedecides a sentence. Secondlv.judges hearingmatters where violenceor sexualassault has been committed are dealing the end result of govemmentneglect. They are partly dealing with the symptomsand. as such, the judiciary have limited

IIO Larissa Behrendt ability to deal with the root causesthat lead to that violence and dysfunction. But politicians and their governmentsare in a position to attack those root causes.They are just continually refusing to do so and instead come up with knee-jerk reactions. Firstlv. they have to accept that there are no quick fixes and the commitment must be for the long term. There will be no picture of them riding in on a white horseto savethe Aborigines. Secondlv. they have to provide adequateresources to communitiesto do the following:

. Allow community based servicesto provide interventionsto protect Aboriginal women and children at risk; o Provide essentialservices in relation to health, housing,education and employment; o Provide adequateinfrastructure in the communities; o Investin humancapital; and . Work with Aboriginalcommunities on all of the above.

The irony wasn't lost on many blackfellasthat the media frenzy and governmentposturing occurred the week after the budget in which Australia was flush with surplus. There is no sustainableargument that the government doesnot havethe resourcesto deal with the root causesof this problem.What they do lack is political will. And the sadthing is that until the root causesare addressed,many Aboriginal people - especially Aboriginal children - will continueto live lives without promiseor opportunityas a result. The other sadirony is. of course,that Aboriginal art and cultureis often quickly appropriatedas a part of the marketingof Australia.We seeit in the opening of the Olympic Games,on Qantasplanes, on tea towels and t-shirts and in tourist brochures.But this country that likes to parade our culture to attract overseas interest has little interest in ensurins that the culture is protectedand allowedto flourish.

III. The Complicityof Law ...

The Mobo caseprovided an exampleof how laws that so long can be usedas a tool of colonisationhad the capacityto be a tool ofjustice. This was an important moment as the failure to protect rights in the Australian legal systemhas a longtradition. The framersof our Constitutionbelieved that the decision-makingabout rights protections- which ones we recogniseand the extent to which we protectthem - were mattersfor the Parliament.They discussedthe inclusionof rights within the Constitutionitself and rejectedthis option, preferringinstead to leaveour foundingdocument silent on thesematters. It was also a document framedwithin the prejudicesof a differentera - of its own kind of xenophobia, sexismand racism. A non-discriminationclause was discussedin the processof draftingthe

IH The Mabo Lecture

Constirutionthat would have included,in part, the following: "...nor shall a statedeprive any personof life, liberty, or property without due processof law, or deny to any personwithin its jurisdiction the equal protection of its laws." This clausewas rejectedfor two reasons:it was believed that entrenched rights provisions were unnecessary,and it was considereddesirable to ensure that the Australian stateswould have the power to continue to enact laws that discriminatedagainst people on the basisof their race. If one is aware of the intentions and the attitudesheld by the drafters of the Constitution then it comesas no surprisethat it is a documentthat offers no protection against racial discrimination today. It was never intended to do so. And the tolerancefor discrimination on the basis of race and genderthat was so prevalent in Australian society at the time the Constitution was drafted has left a legacy in which our contemporaryprejudices can find somecomfort. The 1997 High Court decision in Kruger v The Commonweqlthsassists in making this point. This was the first case to be heard in the High Court that consideredthe legality of the formal government assimilation-basedpolicy of removing Indigenouschildren from their families. In Kruger, the plaintiffs had brought their case on the grounds of the violation of various rights by the effects of the Northern Tenitory Ordinance that allowed for the removal of Indigenous children from their families. The plaintiffs had claimed a seriesof human rights violations including the implied rights to due processbefore the law, equality before the law, freedom of movement and the express right to freedom of religion contained in s.116 of the Constitution. They were unsuccessfulon each count, a result that highlighted the general lack of rights protection in our systemof governanceand the ways in which, through policies like child removal, there was a disproportionatelyhigh impact on Indigenous peopleas a resultof thosesilences. What we can see in the Kruger case is the way that the issue of child removal - seen as a particularly Indigenous experience and a particularly Indigenous legal issue- can be expressedin languagethat explains what those harms are in terms of rights held by all other people - the right to due process before the law, equality before the law, freedom of movement and freedom of religion.Kruger alsohighlights how few of the rights that we would assumewe inherently hold are actually protected by our legal system. It reminds us that there are silences in our Constitution about rights that these silences were intended,and it gives us a practical example of the rights violations that can be the legacyof that silence. The feeling that our Constitution did not reflect the values of contemporaryAustralian society gave momentum to the 1967 referendum.The result of that Constifutionalchange though is often misunderstood.It hasbeen held out as the moment at which Indigenous people became citizens or Aboriginal peopleattained the right to vote. It did neither.In reality, the 1967 referendumdid two thinss:

Kruger v The Commonv'ecrlth( 1997) 190 CLR I

,11 Larissa Behrendt

r It allowedfor Indigenouspeople to be includedin the census;and o It allowedthe federalparliament the power to make laws in relation to Indigenouspeople.

The notion of including Indigenouspeople in the censuswas, for those who advocateda 'yes' vote, more than just a body-countingexercise. It was thought that the inclusion of Indigenouspeople in this way would createan imagined community and as such it would be a nation-buildingexercise. a symbolic coming together.It was hoped that this inclusive nation-building would overcomean'us' and'them' mentality. Sadly,this anticipatedresult hasnot beenachieved. One only needlook at the native title debate to see how the psychologicaldivide has been maintainedand usedto produceresults where Indigenouspeoples' rights are treated as different and given less protection. One of the fundamental vulnerabilitiesof the native title regime, as it currently exists, is that the interestsof the native title holder(s)are treatedas secondaryto the property interestsof all other Australians.The rhetoric of those antagonisticto native title interestsoften evokes the nationalisticmyths of white men struggling againstthe landto help reaffirm threeprinciples in the public consciousness:

o That when Aboriginal peoplelose a propertyright, it doesnot havea humanaspect to it. The thought of farmerslosing their land can evoke an emotiveresponse but Aboriginal peoplecan not; o That when Aboriginal people gain recognitionof a right, they are seenas getting somethingfor nothing ratherthan getting protectionof somethingthat alreadyexists. They are seenas 'specialrights'; and o That when Aboriginal people have a right recognised,it is seenas threateningthe interestsof non-Aboriginalproperty owners in a way that meansthat the two interestscannot co-exist. In this context,native 'un-Australian'. title is oftenportrayed as being

The other lessonthat can be learntfrom the 1967referendum is that the FederalParliament cannot be relied upon to act in a way that is beneficialto 'yes' Indigenouspeople. It was thoughtby thosewho advocatedfor a vote that the changesto section5l(xxvi) (the'racespower') of the Constitutionto allow the Federal Governmentto make laws for Indigenouspeople was going to herald in an era of non-discriminationfor Indigenouspeople. There was an expectationthat the grantingof additionalpowers to the FederalGovernment to make laws for Indigenouspeople would seethat power be used benevolently. This has,however, not beenthe caseand we can seejust one exampleof this failure in the passingof the NatirteTitle AmendntentAct 1998 (Cth),legislation that preventedthe Racial Di.sc'riminqtionAct 1975 (Cth) from applying to certainsections of the ly'arlyeTitle .4c't 1993 (Cth). 2007 will be 40 yearssince the 1967referendum and this providesus with an excellentopportunity to rerisit the implicationsof thesesilences in the Constitutionand to developa more comprehensiveagenda for legal reform to

ll_l The Maho Lecture meet the continuing failure of rights protections in Australia. Such reform offers the ability to provide renewed protection of Indigenous rights and substantially change the status quo between Indigenous peoples and the Australianstate and could include:

A Preamble to the Constitution: a Preambleis important becauseit sets the tone for the rest of the document.It can be used to give assistancein interpreting the act that follows. If recognition of prior sovereignty and prior ownership were contained in a constitution preamble,we may find that courts would read the constitution as clearly promoting Indigenous rights protections (somethingthat was left unclear inthe Hindmorsh Island Bridge case). A Bilt of Rights: Although some rights have been implied into the Constitution, the few explicitly in the text of our founding documenthave been interpreted minimally. Many rights the High Court has found have been implied. A Bill of Rights that grantedrights and freedoms to everyone would be a non-contentious way in which to ensure some Indigenous rights protections. Such a Bill of Rights does not have to be entrenched in the Constitution,like the United States,but can be effective in legislativeform. New Zealandand the United Kingdom now have a Bill of Rights in this form. A Non-Discrimination Clause: Sucha clausecould enshrinethe notion of non-discrimination in the Constitution. However, it must acknowledgethe internationalhuman rights standardthat statesthat affirmative action initiatives do not breachthis principle. Specific Constitutional Protection: An amendment could be made to include a specific provision. In Canada,a comparablejurisdiction with a comparable history and comparable relationship with its Indigenous communities,the ConstitutionolAct 1982 addedthe following provisionto the Constitution:

Section 35 (1): The existing aboriginal and treaty rights ofthe Aboriginal peoplesof Canada are hereby recognized and affirmed.

Some of these steps to improve the Australian rights framework for Indigenouspeople - a constitutionalpreamble, a bill of rights - would have benefits for all Australians. This reinforces the point that comes out of the litigation in the Kruger case, namely, that many of the rights of Indigenous peoplethat are infringed are not'special rights', but rights held by all people. On the flip side, measuresthat protect the rights of all Australians will have particularrelevance and utility for Indigenouspeople.

IV. The Vision of Eddie Mabo

Eddie Mabo had an unwaveringbelief in the rightnessof his claim. He also testeda legal systemthat had worked well to protect the interestsof the middle classmembers of the dominantculture and pushedthat systemso that it soughtto protectthe rights of the poor, the marginalisedand the disadvantaged. And this hasto be the real testof any law, any policy and our Constitution:it is

114 Larissa Behrendt

not enough that it works well for those who are already privileged, its worth is how it deliversfor thosewho areunderprivileged, who areon the margins,who havebeen dispossessed. The other legacyof EddieMabo's vision is that laws needto bejust, but they also needto be matchedwith a legal systemthat can ensurethat justice is on-going.This needsto be complimentedwith a governmentcommitment to meetingthe basicneeds of all of its citizensfor basicservices including health and education, the provision of infrastructure to all communities and investmentin the developmentof human capital, or people.Legal structures and government commitment also need to be matched by a changing of hearts 'us' 'them' and minds, an alterationof the and mentality that has infested nativetitle debates I was a memberof the ACT Bill of Rights ConsultativeCommittee that undertook community consultationprocesses as part of our inquiry as to whetherthere should be a Bill of Rights in the nationalcapital. During those consultations, there appeareda strong reluctance to recognise the rights of minorities.Feedback from thoseconsultations included comments such as 'if a Bill of Rightsincludes the protectionof Indigenouspeople, it will not be for the 'if benefit of all canberrans'and a Bill of Rights mentionsIndigenous rights andthe rights of otherminorities it will haveno legitimacy.' what is noticeablein this exampleis the meannessof spirit about the possible protections that a democratic society can offer. This mentality protectivelyguards the rights and benefitsthat are given to citizens within a community and seemsto assumethat if those rights are extendedto the poor, the culturally distinct and the historicallymarginalised someone will be worse off. This worldview seesthe recognitionand protectionof the rights of the disadvantagedand culturally distinct as being in direct competitionwith their 'us' 'them' own position.It is this and mentalitythat psychologicallyseparates one sectorof the communifyfrom the other. And it seesthe giving of rights protectionas a win-lose. In order to move away from that mentality,we needto realisethat the way to measurethe effectivenessand fairnessof our laws is to measurethem againstthe test I identified earlier,namely, measurethem againstthe way in which they work for the poor, the marginalisedand the culturally distinct. In order to do that, societyneeds to understandthat when you extendbenefits to those who are less well off, you do not lose, but you are securingthe social fabric for everyone,that is, it is a win-win. And a key part of this must be that Australianscease to view Aboriginal people as a threat, as un-Australian. Instead,they need to understand,what we have always understood.that our lates are tied.

ll_i JOURNALOF Contents

Journaloflndigenous Policy - Issue8

Introduction. Larissa Behrendt and Norman Laing I

Comment on the National Indigenous Council's Indigenous Land Tenure Principles from a Native Title Perspective. Jason Behrendt 2

After ATSIC. Chris Groham 1l

Howard's End: The Real Agenda Behind the ProposedReview of IndigenousLand Titles. Nicole Watson 20

The Rising Tide for Native Title: A Case Note on Eric Knight Jango v Northern Territory of Australia (the Yulara case). 38

Distinguishing Native Title and Land Rights: Not Norman Laing an Easy Path to Rights OR Recognition. 50

Creating Conflict: Case Studies in the Tension Loretta Kelly Between Native Title Claims and Land Rights and Lerissa Claims. Behrendt 73

Shifting Ground: Why Land Rights and Native Larissa Behrendt Title HaveNot DeliveredSocial Justice. and Nicole 94 LVatson

The Mabo Lecture. Larissa Behrendt 103

Book Note. Lqrissq Behrendt I 16

Guidelinesfor Contributors. I 18

Appendix - Land Rights and DevelopmentReform in RemoteAustralia. OxfamAustralia l-30