Cabinet papers 1992-93: Mabo opportunity ‘never to come again’

After 1992 decision in Mabo v Queensland, Keating government’s commitment to reconciliation was pulled into sharp focus.

Robert Tickner, Australia’s longest-serving indigenous affairs minister. Picture: James Croucher

With the High Court’s June 1992 decision in Mabo v Queensland (No 2), the Keating government’s commitment to reconciliation had to be pulled into sharp focus.

Cabinet’s initial response to the ruling, which legally banished the flawed concept of terra nullius in favour of ongoing native title, was to seek ways “continuing litigation by Aboriginal and Torres Strait ­Islander peoples seeking to establish title to particular land, with the uncertainty that would create, could reasonably be avoided”.

But it also saw the implications of the ruling on some of the recommendations of the Aboriginal deaths in custody royal commission, which included a focus on the importance of land acquisition and ownership. A delicate balancing act would be required.

“It is far too crude, indeed incorrect, to see the problems posed by the Mabo decision in terms of existing land holders ‘losing their land’,” cabinet papers note.

By year’s end, nine different ­responses had been considered,­ ­including extinguishment of title, but the course determined was to “feel the way forward”.

Indigenous affairs minister at the time, Robert Tickner, says there was “no equivocation by anyone in cabinet about the ­importance of Mabo, of the reconciliation process; the question was where do you draw the line, ­(because) at the heart and soul of the Labor Party was a just outcome, and at the heart of the ­nation was a just outcome. This was an opportunity that was never going to come again.”

GALLERY: Cabinet papers 1992-93

The lodgement of the Wik claim in June 1993 made considerations more complex, with cabinet noting in August its “disposition to adopt general principles … which would allow commonwealth legislation to allow states and territories to validate existing grants of interest in land which could potentially be invalid by reason of the existence of native title”.

The Wik claim related to 35,000sq km in central Cape York containing mining and pastoral leases, national parks, crown and Aboriginal-held land as well as rivers, tidal areas and territorial seas. It went to questions that had cabinet mulling the potential economic impact of a successful claim.

Cabinet resolved that “to the extent that the Weipa or any other mining leases may be at risk of being rendered invalid by reason of the existence of native title … government will act to ensure that this does not occur”.

It noted the “significant ­increase in the perception of sovereign risk by resource investors” with “potential opportunity costs to the nation” that would be “obvious and large”. It also noted that “until the Wik claim is resolved, the claim’s offshore elements will create uncertainty for offshore ­investment especially in the ... petroleum industry”.

Tickner says Paul Keating worked tirelessly to resolve matters with a Native Title Bill that would win consensus among indigenous people but also bring along the competing state and territory, mining and pastoral interests.

In September cabinet considered a two-stage approach for an economic and social justice package, which would address the fact the Mabo decision “would not make up for the disadvantages suffered by Aboriginal people from the dispossession of their land”.

Stage one would involve land and resource development proposals; stage two was to concern relations between indigenous and non-indigenous Australians. “Proposals could be expected in relation to fundamental issues such as constitutional recognition of ­Aboriginal and Torres Strait ­Islander peoples, self-governing institutions, the maintenance of cultural practices and customary law, and a possible document or documents of reconciliation.’’

After the longest debate to have been held in the Senate, the bill passed on December 21, 1993.

The National Archives of Australia today released selected key Cabinet records for 1992 and 1993