Sir Ronald Wilson is the President of the Australian Council for Overseas Aid. He is the former President of the (Commonwealth) Human Rights and Equal Opportunity Commission, and has also served the nation as a High Court Justice, Solicitor General for the State of Western Australia, and as a World War II Pilot. Sir Ronald is coauthor of Bringing them Home, the findings of the Commonwealth’s inquiry into the practice of the forced removal of Aboriginal children from their families.

"I pay tribute to the traditional owners of this area, the Ngunnawal people and acknowledge the honour of addressing the people of Australia through this unique Australian institution."

The privilege in doing so is deepened in my belief that I address you on behalf of millions of our fellow-Australians, people who, like me, are deeply troubled by the Wik debate which threatens to erupt across the land in an election later in the year.

Ladies and gentlemen, when I confess to the belief that there are millions of Australians out there who are alarmed and dismayed by the present course of events, I have in mind the evidence provided by the extraordinary display of the Sea of Hands, most recently displayed at Bondi last weekend, each bearing the name of an individual Australian who wants to be heard in the cause of coexistence between all the stakeholders with no denial of anyone’s existing rights as recognised in current law.

Many of you will recall the rally in front of Parliament House last October, when more than 100,000 of such hands were displayed. Not only that, but the presence on the platform of the representatives of community organisations whose aggregate support base numbered some six or seven million Australians testified to the weight of opinion rallying behind the call to coexistence.

But is this expression of support for coexistence just a passing phenomenon – a flash in the pan? Or is it a groundswell, gathering momentum over the last 30 years, that has carried the nation towards a new maturity in fashioning a democracy that recognises truth and justice in relation to Aboriginal peoples as the essential pillars of a sustainable community of which we can all be proud?

I believe the explanation is to be found in the latter proposition. Let me trace briefly the highlights of the journey we have travelled together over recent decades.

1. Towards the end of the fifties, the forces of righteousness were gathering in the form of agitation for constitutional change to recognise the Indigenous inhabitants as Australian citizens and to confer on the Commonwealth Parliament a legislative competence with respect to them. Faith Bandler, the recent winner of the Human Rights Medal for 1997, held at the National Reconciliation Convention in Melbourne in May 1997 spellbound as she told us about the ten-year campaign that led to the 1967 referendum when more than 90% of the electorate voted for the constitutional changes I have described. It was an overwhelming expression of a desire to bring Aboriginal people in out of the cold, to recognise them as human beings having the same dignity and worth as all other Australians and entitled to enjoy the same rights.

   Faith Bandler attributed the result to the development over the decade preceding the vote to the emergence of a PEOPLES’ MOVEMENT which eventually proved to be unstoppable.

2. The same decade saw the dismantling of the White Australia Policy, a process which culminated in the passage of the Racial Discrimination Act 1975, the purpose of which was to incorporate into domestic law the substance of the International Convention on the Elimination of all forms of Racial Discrimination.

   The Preamble of the Convention recalls “that all Member States have pledged themselves to take joint and separate action … to promote and encourage universal respect for an observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,” and further “that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms” set out in the Universal Declaration of Human Rights.

   Let me digress for a moment to offer a comment intended to be helpful to those in our community who sometimes assert that the goal of equality can be achieved immediately by treating all Australians equally. With respect to that view, may I urge that you do not achieve equality by treating equally people whose circumstances are at that time anything but equal.

   The Convention acknowledges this truth in paragraph 4 of Article 1, by introducing the concept of special measures that may be taken in order to secure greater equality for certain racial or ethnic groups.

3. The next landmark that is relevant to my theme that the past 30 years have seen the emergence of a new national maturity is the Royal Commission into Aboriginal Deaths in Custody.

   Established to investigate the circumstances that led to the deaths of Aborigines and Torres Strait Islanders in either police custody or prison during the eighties, the Commission found it necessary to explore in depth the social relationships or lack of them between the Indigenous Australians and other Australians. It resulted in a mammoth Report, running to five volumes and concluding with 339 recommendations, many of which remain to be fully implemented. There is time to cite only two passages from the Report.

   The final recommendation – No 339 reads this way:

   "“THAT all political leaders and their parties recognise that reconciliation between Aboriginal and non-Aboriginal communities in Australia must be achieved if community division, discord and injustice to Aboriginal people are to be avoided. To this end, the Commission recommends that political leaders use their best endeavours to ensure bi-partisan public support for the process of reconciliation and that the urgency and necessity of this process be acknowledged."

   And then in his closing words, the principal Royal Commissioner, the Hon Elliott Johnston, QC, wrote this about the reconciliation process:

   "“The process may falter at times; appear to get lost; but it can be pulled up again and survive if we are cool and negotiate with open minds as well as with equals. And in the end, perhaps together, Aboriginal and non-Aboriginal, the situation can be reached where this subtly creative Aboriginal culture exists in friendship alongside the non-Aboriginal culture. Such an achievement would be a matter of pride not only for all Australians but for all of humankind.”"

4. The call to political leaders and their parties was heard and on 2 September 1991 the Governor-General assented to an Act to establish a Council for Aboriginal Reconciliation. There are two things of importance to note about this development.

   The first is that the Act passed through the national Parliament without dissent, involving, as you will agree, a rare display of unity.

   The second is the content and significance of the Preamble to the Act. This reads as follows:

   “BECAUSE:
   a) Australia was occupied by Aborigines and Torres Strait Islanders who had settled for thousands of years, before British settlement at Sydney Cove on 26 January 1788; and
   b) many Aborigines and Torres Strait Islanders suffered dispossession and dispersal from their traditional lands by the British Crown; and
   c) to date, there has been no formal process of reconciliation between Aborigines and Torres Strait Islanders and other Australians; and
   d) by the year 2001, the centenary of Federation, it is most desirable that there be such a reconciliation; and
   e) as a part of the reconciliation process, the Commonwealth will seek an ongoing national commitment from governments at all levels to cooperate and to coordinate with the Aboriginal and Torres Strait Islander Commission as appropriate to address progressively Aboriginal disadvantage and aspirations in relation to land, housing, law and justice, cultural heritage, education, employment, health, infrastructure, economic development and any other relevant matters in the decade leading to the centenary of Federation, 2001: …”

   It is interesting to note section 5 of the Act, which sets out the object of the Act:

   “The object of the establishment of the Council is to promote a process of reconciliation between Aborigines and Torres Strait Islanders and the wider Australian community, based on an appreciation by the Australian community as a whole of Aboriginal and Torres Strait Islander cultures and achievements and of the unique position of Aborigines and Torres Strait Islanders as the indigenous peoples of Australia, and by means that include the fostering of an ongoing national commitment to cooperate to address Aboriginal and Torres Strait disadvantage.

   In the more than six years since it began its work, the Council has succeeded, with the help of the media, in putting the reconciliation process on the national agenda. The second of the three terms allowed to the Council, which expired in December 1997, was marked by the holding in Melbourne of the National Reconciliation Convention in May 1997. It was an extraordinary and memorable occasion, attended by about 2000 delegates, with approximately equal numbers of Indigenous and other Australians.

   The key positive factors of the Convention included the gracious and statesmanlike leadership of the Chairperson of the Council, Patrick Dodson, the presence of the Governor-General and Lady Deane, the celebration of the 30th anniversary of the 1967 referendum and the launch of the Stolen Generations Report Bringing them Home.

   The Convention ended on a high note, with the delegates being enthused with Faith Bandler’s vision of “A PEOPLES’ MOVEMENT” for reconciliation and a warm, generous and healing response to the continued suffering of those who still exhibit the scars of the assimilation policy. As several State Governments assured us during the Stolen Generations Inquiry, as we tried to gain a statistical estimate of the number of those who were forcibly removed, there is probably not one Aboriginal family in Australia that does not still bear the scars of the policy. The Convention had the effect of merging the two issues of reconciliation and the Stolen Generations into one focussed on the healing of a nation.

5. One of the most recent highlights of our journey in search of a nations soul is the current explosion around the nation of response to the proposed National Sorry Day to be observed on 26 May, 1998. This day launched at La Perouse on 10 March 1998 under the patronage of Sir Zelman Cowen has taken on a particular character in which the emphasis is on a commemoration of the past and present suffering of the Stolen Generations. It is suggested that in coming together on the basis of a genuine commitment to the notion of our common humanity and equality in dignity and worth we will as a nation find the will and the way to move forward together in a new partnership into the 21st century.

   It is expected that the Day will see a coming together all over the country, often under the convenorship of local authorities, taking such particular form as suites the local community but all sounding the notes of acknowledgment and commemoration together with a celebration of hope and joy in the promise of a new partnership.

   In a sense, the concept for the Day has outgrown its initial focus on the Stolen Generations. It now offers the prospect of a Peoples Movement embracing the majority of Australians turning the page on 200 years of history which has overwhelmingly brought dispossession, denial, injustice, loneliness and hopelessness to one section of the Australian community.

It is at this defining moment in our country’s history that we are confronted with the jarring note of a response to the High Court’s Wik decision which runs counter to the tide of hope and confidence expressed through the highlights to which I have referred.

The Native Title Amendment Bill, if enacted in the form proposed by the Government, will pave the way for the serious curtailment, if not the extinguishment, of much of native title in Australia.

My purpose in delivering this address is to appeal to our political leaders for a reconsideration of the proposed legislation, for genuine discussions with a view to negotiating an outcome acceptable to all parties.

In making this appeal, I speak not only on behalf of a PEOPLES’ MOVEMENT that I have described today, but in particular for the hundreds of thousands who support the aims of Australians for Native Title and Reconciliation. ANTaR is actively supported in every State and Territory and there are a great number of regional ANTaRs, 27 in NSW alone. Invariably hundreds have to be turned away from our public meetings, for lack of even standing room. Women for Wik has become the voice of hundreds of prominent Australian women who care deeply about justice for Aboriginal people. I speak for all of these groups and people today when I make this appeal for a negotiated outcome.

I decline to enter a discussion of what the detail of such an outcome might be. But let me offer a few general comments:

1. The decision of the Court in Mabo was a great victory for justice and human rights. It was in the best traditions of the role and responsibility of the Court to declare the common law of Australia when it is necessary to do so in order to resolve, consistently with the principles of justice and equity, the disputes that are brought to it for decision.

2. Likewise, the Wik decision decision was a just and responsible decision. The fact that technically the issue was determined by a 4/3 majority of the Court cannot properly be used to discount its strength. Many of the great constitutional decisions of the Court over its existence, as, for example, the Franklin Dam case, were decided by a 4/3 majority. If you examine the report, you will see that each member of the majority has written a detailed exposition of their reasons for their decision. Those reasons are transparent and persuasive, the product of individual rigorous intellectual discipline. Herein lies its strength.

3. I believe the common assessment following the decision that it was a win-win decision was accurate. It not only confirmed the rights of the pastoralists but ensured that in the event of any practical inconsistency between those rights and the rights of the traditional title-holder, the rights of the pastoralists would prevail. To the extent that both sets of rights can be enjoyed side by side over vast tracts of land covered by a pastoral lease – as they have in some parts of Australia for 150 years – the common law of Australia continues to recognise these traditional rights.

4. It would be a very serious step, and completely out of tune with the core Australian values of decency and fairness and the whole movement towards reconciliation and coexistence, for the Parliament now directly or indirectly to reverse the Wik decision, and to do so without any adequate negotiation, particularly in the face of widespread community and political concern.

   If this course is pursued, without any further attempt to negotiate an honourable compromise between the stakeholders, the term which Justices Deane and Goudron in Mabo used to describe our earlier history of oppression and conflict resulting in the dispossession, degradation and devastation of Aboriginal peoples, namely, “a legacy of unutterable shame”, will take on a new and even stronger meaning, because it would now encompass the deliberate reversal of the common law, opening the way to the curtailment and even, in some cases, outright extinguishment of native title rights.

5. Further factors that underline the disruptive effect, on our national journey towards a new maturity, of the proposed legislation may be mentioned:

   First, the unique relationship between Indigenous peoples and their traditional land, The course proposed attacks traditional title holders at the very core of their being, their history and their culture, embracing spiritual and cultural considerations as well as material ones.

   Second, it represents an abandonment of Australia’s international obligations to promote respect for human rights and an end to all forms of racial discrimination. The impact on our international standing as a member of the family of nations can only be imagined.

   Third, it runs counter to the example set by other former British colonies in their response to the human rights of their Indigenous peoples, in particular, Canada, the US and New Zealand.

   Finally, it opens up the possibility of individual Australians who suffer from the legislation subjecting Australia to the scrutiny of the international committee system established receive complaints of discrimination.

6. It may readily be admitted that the present situation with respect to land management requires the urgent attention of the legislature. I refer to the procedural difficulties attending to the operation of the National Native Title Tribunal, and also the desirability of statutory provisions to facilitate the making of binding agreements between stakeholders so as to diminish the need for further litigation. But I believe the Australian people whom I represent today want to see these matters dealt with without trespassing on the substance of those precious rights to land that form part of the heritage of Indigenous peoples.

7. I understand that one of the central points of difficulty in the present impasse is the right to negotiate. It is said that this is a statutory right conferred by the Native Title Act, not by the common law. On the other hand, I believe there are moral principles of fair dealing and good faith that are at stake in any attempt to whittle down this right. If it is the fact that in negotiations to secure agreement on the provisions of the Native Title Act, the Indigenous negotiators only secured this right to negotiate in return for surrendering its opposition to a provision which validated all those land grants made by governments throughout Australia between 1975, when the Racial Discrimination Act was enacted and the passing of the Native Title Act in 1993, then in my opinion, it would be quite immoral to now remove or seriously curtail the right to negotiate. It is the only way whereby traditional owners can protect their rights when other interests over the same land are being created.

CONCLUSION

In conclusion my plea is two-fold:

First, that our political leaders respond to the widespread PEOPLES’ MOVEMENT that is committed to the present journey towards national maturity and wants it to continue without interruption by committing themselves to genuine negotiations involving all stakeholders.

Second, that there is an overwhelming case – based on Australia’s commitment to international law and universal human values, as well as the contemporary values of the Australian community – for preserving the rights of ALL parties consistently with the Mabo and Wik cases.

The process should be encouraged by reflecting on the collaboration between Aboriginal people and the pastoralists that has been the mainstay of the pastoral industry over long periods of our history, coupled with the reality of coexistence that is presently enjoyed without significant difficulty and has been so enjoyed for something like 150 years over vast areas of pastoral land.

Only then can the coexistence contemplated by Wik be preserved, to the immediate benefit of the reconciliation process and the long-term future of our nation.’

• Audio and video copies of the Address are available from the National Press Club Canberra Telephone +61-2 6273 3644 or www.npc.org.au
• For more information on the Native Title Amendment Bill and the Right to Negotiate can be found at the National Indigenous Working Group on Native Title website, niwg@ozemail.com.au
• To contact Sir Ronald Wilson, please email philg@justice.sm.cfc.edu.au
• To find out more about ANTaR, our home page is www.antar.org.au
• To get the location of your nearest Sorry Book a full listing is at www.nativetitle.aust.com