Noel Pearson: Speech to the American Bar Association

Thank you very much Danny and Gilbert + Tobin for your kind invitation for me to address this auspicious occasion.

I too pay my respects to the traditional owners of this land and to the Indigenous people of Sydney. Let me say that I wish the American Bar Association all the very best for your deliberations at the conference.

Distinguished ladies and gentlemen I feel humbled to offer some thoughts about the predicament of Australia’s original peoples and to offer some comparisons of the predicament of our brothers and sisters in North America. It was always going to be the case, but the question of land justice would consume the societies as long as they remained unresolved. And in this country it remained unresolved for a very long time.

Australia was the only former colony of the British Crown that had not deal with the question of Indigenous rights to land until the very last years of the twentieth century. We were some 200 years behind in the failure of our legal system to accord to native Australians any respect for their ancient ownership of the continent. Australia was absolutely singular. There had been entire law libraries filled with cases in the former British colonies in Asia, in Africa and of course in North America.

New Zealand had had its equivalent of our most famous caseMabo in the middle of the nineteenth century. Of course the starting point for the judicial discussion of the theory of native title to land might well be the decisions of the Marshall Court in the United States in the 1820s. And Justice Dean in the High Court of Australia anticipated that one day our courts would belatedly turn to the question of Indigenous entitlement when he said in an early case in 1985 inGahardy v Brown that almost two centuries on the generally accepted view remains that the common law is ignorant of any communal native title or other legal claim of the Aboriginal clans or peoples even to ancestral tribal lands on which they still live.

If that view of the law be correct, and I do not suggest that it is not, the common law of this land has still not reached the stage of retreat from injustice which the law of Illinois and Virginia had reached in 1823 when Chief Justice Marshall in Johnson v McIntoshaccepted that subject to the assertion of ultimate dominion including the power to convey title by grant by the State, the original inhabitants should be recognised as having a “legal” as well as a “just” claim to retain the occupancy of their traditional lands.

It fell to the Mabo case mounted in the 1980s and finally determined on 3 June 1992 to finally deal with the question of Aboriginal title to Australia. This belated decision by our highest court came at a time when the country had to grapple with it seems to me, two remorseless realities: firstly there was the undeniable question of the original occupancy and possession of the land by its Indigenous peoples.

Australia could no longer go on in denial of that truth. So facing the High Court of Australia in the lead up to its decision was the truth that this question was never going to subside until it was properly dealt with. But arraigned against that was the reality that there had been two centuries of colonial dispossession of the original inhabitants and acquisition of titles over large areas of the country. And the High Court in Mabo had to try and reconcile those two realities: the original ownership and to the fact of 200 years of history. And the Court put forward a proposition that really is the structure of the Mabo decision, and it followed up in a subsequent decision that our people were involved in called a Wik case, and established a third principle in relation to this historic compromise on the question of land justice.

I’ve often said that if you want to understand the nature of the compromise there might be three principles suggested in those decisions. That first principle was undoubtedly the principle of the accumulated rights of the colonists could not now be disturbed. The first principle of the Mabo case was to confirm white land rights. Challenging the many titles enjoyed by the settlers and their descendants was not made justicible in the courts and the relentless reality in the High Court’s decision was to confirm that colonial dispossession could not now be disturbed.

The second principle of Mabo was to say that, of course, the remnant lands under the period advanced by the Court should now be forthwith accorded to its traditional owners. The remnant lands where extinguishment had not occurred and the people had not been annihilated should forthwith be determined in favour of its traditional owners. So the structure of the compromise was that the original peoples were to get what was left over. And the third principle articulated by the High Court in the Wikdecision was to say that there are various categories of land such as pastoral leases and national parks where there was a possibility of co-existence, co-existence of the crown grants with the original titles held by the traditional owners.

That should have been the structure of the compromise. The colonists keep what’s theirs, the Indigenous keep everything that’s left over and there should be honour in relation to the determinations that should result in the wake of the decision and there are categories of land where titles can co-exist and the formula in the Wik case gave that co-existence, gave superiority in that co-existence to the holder of the crown rights. So wherever there was an inconsistency between the native title and the crown grant, the rights under the crown grants superseded the native title.

I felt that given the reality of history and the possibilities for the future and the fact that the ongoing process of dispossession would continue as long as there was not a settlement of remnant rights, I felt that the compromise was one that the country ought to seize upon. It was the only compromise available without resort to anything but the courts of law. It was a compromise proffered by our highest institution as a means of resolving the two centuries’ grievance; and all of our febrile hopes rested on the idea that the country might accept the basis of that compromise, after all, we argued in the wake of the Mabo decision. After all, the basis of this compromise had its foundation in the law of the colonists.

It was the law of England which respected Indigenous title to land. It was the law of England that apprehended the Aboriginal peoples as following the acquisition of sovereignty now subjects of the British Crown but then also entitled to the protections offered by British law and that principle protection being that those in occupation of land should be presumed to be in possession. And we thought the people of Australia would draw upon their own legal traditions to say that at this juncture Mabo ought to be a cornerstone for reconciliation and a new relationship between the Aboriginal peoples and the rest of the country.

Mabo provided to this country what I described at the time as a once in a lifetimes opportunity for a nation. Nations only get one chance like this to get it right. And we squibbed it. Over the past 18 years we have seen a grudging determination on the part of the Australian people to put to absolute proof every native title claim launched by traditional owners in relation to their remnant lands. There have been court cases that have cost far in excess of the value of the land in the market place. A pastoral lease costing $2 million cost $12 million worth of case law. Such has been the resistance of this country to the idea that native title provided a potential cornerstone for reconciliation and justice. Essentially, the response of the adversaries of native title was thank you very much for principle number one we are now going to put you to proof in relation to principle number two.

I don’t think the opportunity of Mabo is completely lost to the country, but it is in severe decline. It is going to slip from the hands of the country as long as the political and judicial response to the original 1992 decision remains as poor as it has been. Can I say that one of the key areas in which the law has deteriorated in relation to native title in this country has been in relation to the question of the form of title that native title represents. Let me take you back a few steps. They key issue facing the High Court in 1992 in Mabo was the question of whether the Aboriginal connection with the land in this country was the type of connection that English law would recognise and respect.

There was a famous decision to which the then Justice and later Chief Justice Brennan referred in the Mabo case and a decision of the privy council in re Southern Rhodesia in 1919 which captured the issue facing the Court and Lord Sumner spoke on behalf of the counsel when he said that the estimation of the rights of Aboriginal peoples is always inherently difficult – some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilised society. Such a gulf cannot be breached. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.

And of course in Mabo it fell to Justice Brennan and the majority to put behind us the discriminatory view in re Southern Rhodesia. And Justice Brennan famously said that if the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depends on the notion that native peoples maybe so low in the scale of social organisation that it is idle to impute to such people some shadow of the rights known to our law, in re Southern Rhodesia can hardly be retained. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be, nor be seen to be frozen in an age of racial discrimination.

So the great social Darwinian estimation of peoples according to some hierarchy was dismissed by the High Court of Australia in Mabo. No peoples, whatever their cultures and social organisation and religions and beliefs and relationships to country, occupy land without possessing it. All peoples are to be accorded respect by the common law in respect of the occupation. There is no justification for a racial discrimination that gave priority in recognition to certain cultures in societies and not to others. But then having made that breakthrough, the Australian law immediately descended into an estimation of discriminatory exercise in relation to the nature of the title that could be enjoyed pursuant to that occupation.

So in the Australian law that has accumulated over the last 18 years, there is a bizarre jurisprudence that posits the idea that native title in this country is the sum total of whatever berry picking rights Indigenous claimants must be able to prove by reference to their traditional laws and customs as they existed in 1788. So, in the Australia law, the Indigenous hardly own the economic property on the lands they successfully claim. And they are left in this bizarre historical zoo by virtue of the mistaken idea that native title is to be determined by reference to traditional laws and customs.

You see, the key question that has been misunderstood in the academic and judicial discussion of native title in this country is this: even as we have accepted that traditional rights survive the acquisitional sovereignty by the crown, even as we all accept that, that the rights survive the acquisition of sovereignty under what is known in the Canadian law and in some of the Australian discussion as the doctrine of continuity, even as we accept that, the mistake arises in relation to the question of what continues? Is it those rights and interests that are established as a matter of proof by reference to the traditional laws and customs of the group? Or is the right to continue the occupation of the land pursuant to the authority of one’s traditional laws.

Is it the occupation that founds the right to possession that survives the acquisition of sovereignty? I have been of the view that the correct interpretation is that it is the right to possession that has survived sovereignty. And indeed in a classic analysis by Professor Kent McNeal, an academic from Canada, in the classic analysis that he outlined in 1989, the position of Indigenous people at the moment of sovereignty is this – they are in occupation of their traditional lands pursuant to the authority of their laws and customs and on the basis of that occupation English law accords them a presumption of possession.

Occupation is proof of possession and a possessory title is not a title limited to whatever incidents might be proven by reference to one’s understandably arcane traditional laws and customs back in ‘70 and ‘88. The same arcane traditions and laws that the Englishmen holding title back in 1400 would have evidenced as a matter of proof as well. But the Englishmen in possession of his estate in 1400 had within his entitlement the right to build a nuclear power station. The right to build a nuclear power station was an incident of his possession even though he could never imagine at that stage that that was a right that he wanted to enjoy.

As Justice Isaacs once said in a famous Australian case – the fee simple, the rights that attend to the fee simple have never been fully enumerated. The rights that are incidental to possession include rights that we have not yet imagined. Subject to whatever derogations have been validly enacted by the legislature or whatever reservations validly affect Native Title because the Crown has reserved to itself ownership of certain, in the case of Australia’s history, certain mineral products. So the Australian law in the past 18 years has become an absolute quagmire of jurisprudence that has meant that Native Title claimants are subjected to absolutely strange requirements of proof in relation to their traditional laws and customs and we’re left with the ridiculous situation where the title of an adverse possessor under our law is more complete than the title of a Native Title group claiming communal tenure on behalf of their group.

Because the adverse possessor only has to prove his control of the land and all of the incidents of possession are presumed to be held by him. But the Native Title claimant is in a far inferior position to that of the adverse claimant. The Australian law on Native Title since the original 1992 decision has been an absolute travesty of misconception and intellectual shortcoming by the academics who contributed to the misconceptions, to the advocates who provided poor guidance to our Federal and High Courts in relation to these questions and we have had a High Court and a Federal Court that, in my view, have ill served the Indigenous people of this nation. Let me say one last thing about the jurisprudence of Native Title since Mabo’s case in 1992.

One of the great difficulties facing Native Title claimants in this country has been in relation to the question of compensation for past dispossession. According to Australian law whilst the extinguishment or derogation of Native Title in history is not compensable, the effect of the Racial Discrimination Act in 1975 would have founded potential claims for invalidity of Crown Grants and with the validation of those uncertain titles by virtue of legislation enacted in 1993 Native Title holders were entitled to compensation for the extinguishment of Native Title by virtue of the 1993 Act.

Potentially in that period between 1993 and 1975 large parts of Australia had been subjected to grants adverse to Native Title therefore giving rise to entitlement to compensation. And at the time of the legislation’s passage in 1993 there was a vigorous national debate particularly in relation to the question of compensation and who would bear it and a deal was made between the Commonwealth and State governments of the time that the many anticipated billions of dollars of compensation would be split according to a certain formula between the two levels of government.

Now I am not aware of one dollar’s worth of compensation ever having been paid in the ensuing period. None of the entitlements under the Native Title Act have fallen due to those entitled to the compensation claims under the legislation. This has been because the scheme under the legislation places a weight upon claimants to prove the original existence of their title, to prove the quantum of their loss and Indigenous groups have been absolutely unable to pursue claims because of the likelihood that the costs of running the compensation claims are likely to far exceed the payment of compensation for the losses suffered. And the resistance of State and Territory governments and the Commonwealth, the vigorous resistance to Native Title claims, has meant that not one dollar’s worth of compensation has been drawn down upon as anticipated by the original legislation. And I foresee no solution to this issue until there’s a serious change in the way we approach the question of the constitutional guarantee of the payment of just terms for property loss.

The just terms provision applies to the loss of Native Title by virtue of governmental action, however, the difficulties facing Aboriginal land owners are very very great indeed. The prospect of traditional owners mounting compensation claims is daunting because there appears to be no principle in our constitutional law that guarantees some kind of proportionality between the benefits gained by acquisitors and the entitlement to compensation guarantee by the Constitution. All the Native Title Act does is that it tautologically repeats the constitutional guarantee.

If legislation validates rights and vests rights in certain parties, you would think that there ought to be a constitutional principle that says – well the third party has gained instantly the moment of validation, surely there should be some proportionality in respect of a person whose property has been acquired receiving his or her compensation. This is an area of law in this country that is extremely ill developed and for the rest of the country the entire country received the benefits of validation instantly upon the passage of the 1993 Act and yet the procedures and hoops through which those who lost properties can gain their entitlements under the Constitution are so daunting that I assume that in my dotage I will stand before audiences such as this arguing that perhaps not a dollar has been paid.

Let me now turn to another aspect of the predicament of Indigenous peoples and that is our social and economic recovery. It is a matter to which we are equally engaged in my region of the country – very difficult questions of how it is that Indigenous peoples take a fair place in this their own country. The statistics of economic and social disadvantage are notorious. A life expectancy of less than 50 years and a range of social and economic indicators that only those who have known the similar predicament of Native Americans and other Native groups throughout the Commonwealth would understand. How do we turn around a life expectancy deficit of 20+ years? And many of these indicators are not on the improve.

They are getting worse. The number of Indigenous children in child protection systems and in foster care is on the rise. Across a whole range of indicators you would have to go to some parts of sub Sahara and Africa to find life expectancy rates like some parts of this country. Imprisonment rates, 3% of the population in some of our jurisdictions, are contributing 40% of the prison population. 3% of the population are contributing 60% of youth and juvenile detention. These are problems that are not going to be turned around in short order but what we must first realise before we pursue the policies that have some hope of working is that we have made many efforts in the past. We have come to many similar conclusions about the immorality of this situation in the past. We have come to many sincere junctures where we’ve said things have got to change, things have got to get better and our policies and programs and budgetary commitments have got to be renewed.

And yet like groundhog day we come to that juncture again five years later when a whole range of new indicators illuminate a deteriorating situation. We have long argued from our part of the country that we have got to get our thinking straight first and our critique of welfarism has been central to our re- thinking, it was obvious that we needed welfare reform but the problem of relegating the country’s original peoples to a position of mendicancy was not just a symptom of the problem, it was the cause of many of our problems and if it wasn’t causal of many of our problems, it certainly exacerbated any existing problems we had and certainly frustrated and prevented any of the solutions that we proposed so we had to get on top of welfarism, substance abuse and the social breakdown that was occasioned, particularly in the past three to four decades.

It was my analysis, and it still is my analysis, that through 200 years of mean history in the teeth of inhumane racism, aboriginal people had as the slogan said they “survived”. They had mustered together some strength that had seen them survive in the teeth of a heartless society. We had some strengths in the ‘50s and the ‘60s and those strengths were largely social and family-based strengths where people would continue to fulfil their responsibilities to their children and had taken responsibility because at the end of the day responsibility was all that they had, even if their rights were not fully accorded to them.

I was struck by an analysis by the conservative African American intellectual, Shelby Steele, that struck a chord with me in relation to what might have happened at the moment of our citizenship in 1967. I think a grievous mistake was made when the doors of citizenship finally opened. Instead of holding on to our responsibility and enjoying our newly guaranteed rights we ushered in an era where a combination of white guilt and black victim hood made a bad situation worse and deferred the day when we would take our rightful place in the country because no salvation at the end of the day was to be found in white guilt and black victim hood.

We keenly understood that victim hood was ultimately not a posture that would benefit our people, it was not a mentality for continued survival. If our ancestors had adopted a mentality of victim hood we would never have survived colonisation but the tragic deal struck in the argument of Shelby Steele in the wake of the 1965 Civil Rights Act and with a parallel in the wake of the ‘67 referendum in this country was this Faustian pact we made about white people were going to redeem their history through guilt and the aboriginal peoples and black Americans would cultivate an outlook unfortunately that had too many strains of victim hood within it.

So we have been pursuing a responsibility agenda. A student of the great dialectical struggle between W.E.D. Debois and Booker T. Washington, a student of that great struggle between those two ideas in the history of African Americans and the United States consumed my own thinking about it and my own view was that the whites argument of Dubois and the responsibility argument of Booker T. Washington was a struggle that had to be keenly pressed and the greater the tension between the two would locate the answer. We needed strong recognition of our rights and a strong affirmation of our responsibility and in that struggle between those two ideas I suppose I personally fall on the Booker T. Washington side of that, that debate.

I fall on that side of the debate because it’s the uncool side. I fall on that side of the debate for this argument, so let me propose this argument: It is because at the end of the day it is taking responsibility for yourself that is your most guaranteed defence, it is your most guaranteed position and if we, and people of our ancestors, can draw upon our history for confirmation that people can survive provided that they have the strength of their own responsibility, even in the teeth of oppression. I think that one of the causes of social unravelling in our communities has been the idea that somehow it was the Australian welfare state that was going to save the indigenise and once we internalise the idea that somebody else was going to save us, we had internalised a fatal conceit. So for the future I have always drawn upon the example of the Jews.

They are a community who have never forgotten history and they never allow anybody else to forget history, they fight staunchly in defence of the truth, they fight relentlessly against discrimination but what they have worked out as a people is that they never make their history a burden for the future, they defend racism but they never make racism their problem. They never make racism their burden and properly understood, racism should be a problem of the races, not our burden.

As long as we understand the problems that result when we take on racism as our problem, we remove a great power from ourselves and to black Australians and to other peoples in a similar predicament I say to them the example of the Jewish people is a salient example for us. It is an example about how it is that we might grapple with the past but engage for the future, it is also an example about how we might maintain a community and a sense of people hood, religion, tradition, culture, history over millennia and yet at the same time engage at the cutting edge of whatever the world has to offer.

This is an example of a community that is able to maintain a thread of people hood notwithstanding diasporas and the idea of people maintaining an orthodox heart at its centre whilst the rest of the community engages in orbits around that gravitational centre and engage according to their own choices with the rest of the world. That is a vision for an aboriginal future in my part of the country. I want Cape York to be the point of gravitation, to be home, to be the heart for our people but I want our young members in the future to orbit around that heart and to engage in the world and we can maintain a sense of people hood and common identity and religion and language, we can maintain tribes but if we think that tribes can prosper under the current model of deadening socialist communalism that is in truth only a product of administrative history more than being based upon our ancient tradition.

We have a stultifying communalism that is the product of our bureaucratic dealings with the State rather than being a true reflection of our ancient traditions and until aboriginal reservations, and I suspect Native American reservations, break out of the scriptures of communalism and maintain community but at the same time free individuals and families to prosper and to pursue a better life in their own right, then we will continue to wallow in disfunction and misery. The Jews are an example of people who have maintained a communal identity as a people whilst never placing strictures on individuals as to their jealous pursuit of their own interests and that of their families. It is the way people prosper in the world and that is one thing we have woken up in relation to our predicament in Cape York.

The Liberals are right when they say that there is a power in individual choice and jealous regard for one’s own immediate family. It’s the engine of development the world over and I don’t think indigenous peoples are exempt from that principle. If we want to enjoy prosperity then liberal thinking is right in relation to the power that individual choice and self interest represents for development. It is the very engine of development and so we have to find a way, just as the Jews have to reconcile a vehement self-interest and a vehement individualism, and reconcile that with a common identity with our fellow members of our tribe. I think that there are sufficient examples of peoples that have managed that reconciliation and who manage it very successfully and the lesson for us in Cape York Peninsula is a lesson which says that we can maintain a sense of people hood that captures our ongoing traditions, our language, our connection with the country, our religion, whilst at the same time enabling individuals to participate in the world according to their own likes and according to their own passions and according to their own talents. Thank you very much.

DG So I’ll ask a question. Noel, you talked about the judiciary, unfortunately all the High Court were sitting today, so they couldn’t be here to hear your remarks, but there are several Federal Court judges here to have the benefit of your views and they’ll be the richer for them. The kind of role of government at the time of the Native Title Act, and what was done with that Act, to, I don’t know whether it is undermined, but to undermine or to subvert or to send out a different kind of route to the Mabo andWik decisions, do you have any comment about that? The role of the legislature that is representative of us, because there was a very great debate at that time about the justice of that piece of legislation.

NP The Australian High Court has interpreted a crucial provision of the Native Title Act in a way that was completely unintended by the Parliament and those of us who participated in the debates and negotiations around that legislation. Section 223 of the Act defines Native Title and those of us who participated, including the politicians always understood that section 223 was really just a statement to the effect that Native Title was whatever the common law of Australia said Native Title would be,

But unfortunately there was an interpretation that was eventually made by the High Court that the clauses that were drawn from one of the judgments in the original Mabo case represented a statutory codification and this was a complete difference to what our original understanding was. Our anxiety when we negotiated the legislation was to preserve the common law institution of Native Title. We did not want to create a statutory codification of the concept and we never understood this definition to have done that. But a High Court decision in the Yorta Yorta several years ago completely confounded that original understanding and the Federal and High Courts have departed from the understanding of the Prime Minister and the Attorney General at the time and the understanding of the government lawyers and our lawyers that the legislation was merely a preservation of the common law, not a codification of it.

So that’s the technical answer to Danny’s question about how it is that the Mabo decision has been severely derailed. But can I say that we advocates for indigenous claims were partly responsible for this deteriorating direction, because there is a question about whether the statutory definition, the bar for proof would be equal to the common law. Where was that bar, or did it set a lower bar and advocates for aboriginal claimants, I think vested their hopes in the idea that the statutory provision would represent a lower bar than what would be expected in a straight common law claim. What we have ended up with is in my view a bar that is in fact higher than the common law. It would be easier under proper pursuit of common law principles to prove claims than is currently the case under the Australian jurisprudence.

A massive slight of hand was able to be committed as a result of this because from the moment that you determined that it was section 223 that def


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