Indigenous land rights

In March 1984 Cabinet considered a submission by Aboriginal Affairs Minister Clyde Holding on strategies to achieve consistent national Aboriginal land rights. He noted that the states and territories had the capacity to legislate for land rights and the protection of cultural sites, but that their willingness to act varied considerably. South Australia, New South Wales and Victoria had drafted or enacted land rights legislation, but some of the other states were less willing to legislate or, in the case of Queensland and Tasmania, were opposed to it in principle. There was as yet no jurisdiction in which legislation fully satisfied the ALP's policy objectives of Aboriginal land being held under inalienable freehold, sacred sites being fully protected, and Aboriginal control of mining and access to royalties and compensation for land lost.

Holding said that the Commonwealth had two options: to enact comprehensive national legislation, regardless of existing state legislation, or negotiate with the states in the hope of gradually achieving acceptable legislation on a state-by-state basis. Holding preferred the latter option, although he noted that compulsory acquisition of land and payment of compensation might become necessary. Cabinet agreed that consultations with the states should proceed, but approved in principle the drafting of national legislation in case it was needed.

On 14 December 1984 Cabinet considered the land rights situation in Western Australia, following a request from WA Premier Brian Burke for Commonwealth endorsement of the WA Aboriginal Land Bill. The Prime Minister had said on 19 October 1984 that the Commonwealth had no intention of legislating to override Western Australia's decisions not to permit any veto on mining or exploration, and to confine native title applications to Crown lands for which no public purpose had been allocated. However Holding told Cabinet that since then there had been significant changes in the WA proposals. Major areas of concern included the restriction of claims to mission lands and Crown land unallocated for any public or private purpose, so that land claimed might have little economic or agricultural potential and would, in some cases, be subject to automatic excision from the claim if a mining interest was granted over it. The four-year time limit on the lodging of claims would encourage ambit claims by both Aboriginals and miners, while the legislation did not provide for inalienable freehold title so that the government retained the power to resume land. Cabinet agreed that Hawke and Holding would seek a meeting with Premier Burke in early 1985 and Cabinet would consider the principles to be included in Commonwealth land rights legislation.

Cabinet returned to the issue on 25 February 1985 when Holding reported that despite further consultation Western Australia remained firmly opposed to the Commonwealth's views in several key areas. He was concerned that the WA position might increasingly influence other states. It was important that the Commonwealth set out its own position clearly, since there tended to be an assumption that the Commonwealth position would be based on the legislation on Northern Territory land rights enacted in 1976. This was not in fact the case, since the Commonwealth scheme would not include a veto on mining and exploration, and would not extend to public land already designated for a specific purpose. Cabinet endorsed a comprehensive set of principles as a basis for consultation with the states. These provided that Commonwealth legislation would operate concurrently with compatible state legislation and that the 1976 Northern Territory legislation would be amended to bring it in line with the Commonwealth position. Land available for claim would include former Aboriginal reserves and missions (reserves and missions currently occupied would be granted directly to Aboriginal people), vacant Crown land subject to mining interests, all other unused Crown land and Commonwealth national parks where the traditional owners were prepared to accept the area's continued use as a national park. Claims could not be made for private land, land set aside for public purposes and any other alienated land, including pastoral leases. Claims were to be based on traditional entitlement, historical association, long-term occupation and use, and specific purposes such as town camps. Aboriginal people would not be able to veto mining or exploration, but an independent tribunal could make recommendations for the resolution of disputes (see A14039, 2092).

Holding reported to Cabinet again on 12 August 1985. The government's 'Preferred National Model' for land rights had been circulated widely and received 261 responses, but little support; Aboriginal people found it too conservative, while groups such as miners argued that it went too far in favour of Aboriginal interests. Many groups and state governments argued that land rights should be a state responsibility. Holding suggested that this lack of consensus indicated that the model, with some refinements, would be a workable compromise. Cabinet agreed that the model was a proper and balanced basis for the implementation of land rights. However the Commonwealth's 'clearly preferred position' was for the states to implement land rights legislation broadly consistent with the 'Preferred National Model' rather than for the Commonwealth to pass overriding legislation.

Relations with the Queensland government over land rights improved. Holding told Cabinet in September 1985 that steady progress was being made with the Queensland Aboriginal Affairs Minister, Bob Katter, on a three-year program for full self-management on Queensland reserves. The Queensland government remained philosophically opposed to land rights, but in practical terms self-management was acceptable to the Commonwealth. However Holding was concerned that Katter's departmental head, Pat Killoran, was not committed to self-management and devoted much of his time to undermining Katter. Cabinet decided to extend the Community Development Employment Program to four more Queensland communities and to sell houses on reserves to the communities at nominal cost.

Selected documents

Copyright National Archives of Australia 2014