Patrick Dodson (WA, Australian Labor Party) Share this | Hansard source

I move:

That the Senate take note of the documents.

I would like to acknowledge the Ngunawal and Ngambri peoples on whose lands we are gathered. I thank the minister for his statement. On 24 May this year the minister invited me, as he said, to attend an event to commemorate these significant anniversaries and to celebrate the 50th anniversary of the 1967 referendum and the 25th anniversary of the Mabo decision with the original campaigners of the 1967 referendum and the Mabo decision plaintiffs and their families. It was indeed a grand occasion.

Today I acknowledge the minister's statement on the 50th anniversary of the 1967 referendum and the 25th anniversary of the Mabo High Court decision. Without any doubt, these events are high points in the recognition of Aboriginal and Torres Strait Islander people's prior and ongoing positions in our national culture, society and laws. In particular, the 1967 referendum eliminated one form of lingering racism in our Constitution, allowing Indigenous peoples to be counted in the census and allowing this place to make laws for Indigenous peoples.

I also want to highlight some of the other major turning points that have pointed to a new way forward along the road to reconciliation, such as the return of land to the Gurindji in 1972, the Aboriginal Land Rights (Northern Territory) Act 1976 and the Council for Aboriginal Reconciliation Act 1991. Many of these highlights were bipartisan in their creation, and we strived for a bipartisan and cross-party response in future efforts to change our Constitution, to make it more consistent with our national values and to remove the lingering racism legacy in the Constitution of the past.

But it is the story of Eddie Koiki Mabo that I want to focus on today. Inside the colony of Queensland, in its maritime boundaries, in the Torres Strait, between Papua New Guinea and Australia is the Murray Islands, the largest of which is Murray Island or Mer. In 1982, Eddie Koiki Mabo and four other Murray Islanders commenced proceedings against the state of Queensland. They claimed occupation of parcels of land on Mer as holders of native title under their own customary laws. This litigation transformed the modern Australian common law. In the parliament the foundation documents of Australia's laws and societies are on display. School children can see Eddie Mabo's handwritten documents showing the shape of the island of Mer, and noting the family names associated with tracts of land, including his own family name and their connection to the country. His map sits alongside the Yirrkala bark petition, the Barunga statement and Kevin Rudd's apology. These important documents testify to the ongoing challenge of defining and resolving the fact of Aboriginal and Torres Strait Islander prior ownership of lands that we now call Australia. They call for all of us to recognise and understand the facts of the occupation of Australia.

First peoples were in this land as owners of their respective countries before and when the settlers arrived and gradually spread out and occupied the territory of Australia. It was, and is not, terra nullius. According to the Chief Justice of Australia who heard the Mabo case, Sir Gerard Brennan;

… the common law of Australia rejects the notion that, when the Crown acquired sovereignty over territory which is now part of Australia it thereby acquired the absolute beneficial ownership of the land therein, and accepts that the antecedent rights and interests in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty. Those antecedent rights and interests thus constitute a burden on the radical title of the Crown.

With the rejection of the notion of terra nullius, native title was held to survive the acquisition of sovereignty. It was a poignant tragedy that Koiki Mabo did not live long enough to enjoy the recognition of what he knew in his heart and his mind to be the truth. The legacy of this man's effort is a great legacy, a positive landmark moment on the road to national reconciliation. Putting these signposts in place was not an action of any one political party but of the nation as a whole through our parliament.

The Mabo decision led to an eruption of controversy and alarm. The then opposition, now the government, was a bitter opponent. After much vicious public debate in 1993, the Commonwealth parliament under the Labor government of Paul Keating enacted the Native Title Act, which built on the common law as defined in the Mabo case. It was challenged in the High Court by the Western Australian parliament. The High Court upheld the validity of the Native Title Act and found Western Australian law to be invalid.

Another milestone on the road took place in 1996 with the decision of the High Court in the Wik case, which found that native title and pastoral leases could coexist. The 1996 amendments to the Native Title Act, in the words of the then Deputy Prime Minister Mr Fisher, 'delivered bucketloads of extinguishment', but they also delivered opportunity for Aboriginal people to make agreements. Far too often, however, the price for that opportunity has been too highly paid in my view, leading to the extinguishment of native title forever and a day.

In the Senate this week, the validation of these Indigenous land use agreements has been under debate and will continue to be. At every step the Labor Party has pushed for consultation on these bills: through a Senate committee, through submissions and through consultation with representatives of the native title representative bodies. At every step we have remembered the legacy of Koiki Mabo and understand the fact that native title rights, now recognised in the common law and federal legislation, should not be changed, extinguished or modified at the whim of government. Native title rights exist not as a gift of the parliament or as an act of largesse by the government of the day but as an ongoing right, with deep roots into our national past, our shared history and our common and optimistic future.

Finally, I wish to extend on behalf of the Australian Labor Party our sincere thanks to all those campaigners in 1967 for their tireless effort to change the mind of a nation. We are grateful and a better nation as a consequence of their hard work and their sacrifices. It was one of the few referendums that were successful out of the 44. In the same tone we extend our thanks and appreciation to the families and descendants of those who had worked tirelessly with Koiki Mabo to give reality to his lifelong dream: native title. The people of Mer and the Aboriginal and Torres Strait Islander peoples across Australia are truly indebted to your efforts.

Question agreed to.