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Mabo passed in '93 after bitter debate

AAP logoAAP 31/12/2016 Max Blenkin

Close to the dot of midnight on December 21, 1993, the Senate reached a final vote after the longest ever debate in the upper house and certainly one of the most divisive and rancorous of Australian political history.

The Native Title Bill passed by 34 votes to 30 following 51 hours and 49 minutes.

Opponents had warned the new laws would pave the way for indigenous land claims on suburban backyards, along with public parks, farms and mines and that it would cost vast numbers of jobs and billions in export income.

None of that has come to pass.

It all started in the 1980s and culminated on June 3, 1992 when the High Court delivered its decision in the case of Mabo versus the state of Queensland, upholding the claims of five Torres Strait Islanders.

Lead plaintiff was land rights advocate Eddie Mabo who died in January 1992, never a witness to the historic ruling.

The High Court found Murray Island in the Torres Strait - also known as Mer - was occupied by indigenous people who had their own laws and customs and their "native title" had survived the Crown's annexation.

That decision spelled the end of the long-running legal doctrine of "terra nullius" - that no-one, certainly not the indigenous residents, owned Australia when the first European settlers arrived in the late 18th Century.

It necessitated new policies, laws and public administration procedures and the first steps in that complex process fell to the Labor government of Paul Keating and his Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner.

Cabinet documents for 1992 and 1993, released by the National Archives of Australia, show how the Labor government responded to the tectonic legal shift.

Keating had set the bar high for a principled response which fully considered the new position of indigenous people and which was much more than business as usual.

In his Redfern Speech of December 1992, he said the Mabo decision established a fundamental truth and lay the basis for justice.

The ruling had followed release of the final report of the Royal Commission into Aboriginal deaths in custody in April 1991 which amply spelled out the extent of indigenous disadvantage.

Six days after the High Court decision, Cabinet called for a report on the implications of Mabo.

On October 27, it noted the inherent uncertainty but the fundamental national significance of this decision which highlighted the need for a clearer approach to Aboriginal land, providing greater consistency and certainty.

The government launched a wide-ranging consultation process, even seeking information on how similar issues were handled in New Zealand and Canada.

"Whilst providing general principles, the decision leaves a number of key issues unresolved so that in some cases it will be difficult to determine whether native title exists, the nature and extent of that title, and the relationship of that title to other interests in land," said a cabinet submission from Keating, Tickner and Attorney-General Michael Duffy.

They outlined nine options, ranging from leaving it all to the courts, through to land rights legislation. They considered, but rejected, options for extinguishing native title on grounds it would produce deep domestic division and strong international condemnation.

The government launched a consultation process, seeking the views of state and territory governments, Aboriginal and other interest groups on the best means of giving "practical effect to native title" while creating greater certainty for the resources sector and others.

Tickner, special guest speaker at the release of the cabinet papers, said the political climate changed radically after Labor's unexpected victory at the March 1993 federal election.

Bipartisan support vanished, mainly because of pressure from the mining industry and from state and territory governments, principally WA and then premier Richard Court.

Court pushed the view the issue should be left to the states.

Tickner said he never believed "there was snowflake's chance in hell" that the mining industry and state and territory governments would ever agree to legislation in which miner interests were subject to the "very reasonable and modest interests of Aboriginal people."

"Many today would understandably have no real appreciation of the vitriol, intolerance and scare mongering that was perpetuated in the debate on Mabo," he said.

"Some of it makes Donald Trump's election campaign look like the free-flowing milk of human kindness."

Tickner copped some of this aggravation.

"I had a dead rat sent to me in the mail. My electorate office was partially destroyed by an arson attack and I had repeated death threats which resulted in guards being placed on my home," he recalled.

The government introduced its 115-page Native Title Bill to the House of Representatives on November 16, 1993 and it was passed without change nine days later.

Then it went to the Senate where no easy passage was assured. Labor, with 30 seats against the coalition's 36, required support from at least nine of the seven Australian Democrats, two Greens and Tasmanian Brian Harradine.

In such circumstances, the government had little choice but to accept amendments - 116 in all.

The coalition fought to the wire. With passage imminent, then Nationals leader in the Senate, Ron Boswell, warned it was in effect unworkable and put at risk 160,000 direct jobs and 470,000 indirect jobs and $37 billion in export earnings .

"The bill may benefit 12,000 Aborigines but it discriminates against the rest of Australia," he said.

Tickner praised Keating for the diligence, dedication and courage he displayed during the 18-months following the Mabo decision. Keating later acknowledged this was the most difficult thing he did as PM.

"I can never forget Paul Keating sitting at that table with his very imposing pen, always deep in thought, always focused on incredibly complex issues," he said.

"There was no equivocation by anybody in the cabinet room ever about the importance of Mabo, the importance of the reconciliation process."

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