Yesterday’s High Court decision in Northern Territory of Australia v Arnhem Land Aboriginal Land Trust is one of those left-field events that can disrupt the entire political narrative of the nation.

It was the Wik decision in December 1996 that started the turmoil of the Howard Government’s first term, and things never recovered until after the near-death experience of the 1998 election. The decision punched redneck buttons across the country, primed by Pauline Hanson’s efforts to whip up racist sentiment. John Howard and Tim Fischer struggled to manage the resulting wave of animosity toward native title, shifting to the right in a desperate bid to prevent the defection of conservative voters to Hanson. It led to some very ugly politics, even from the otherwise avuncular Fischer.

Don’t think such sentiments have vanished from the Australian electorate. They can lie dormant, until a single image like Gladys Tybingoompa dancing in the High Court forecourt or an incident like Cronulla brings them out, ready to be exploited by politicians or broadcasters adept at using the appropriate code words.

This is not an assertion of the “latent racism” of Australians, but of the capacity of some to exploit the confusion and simplification that automatically accompanies concepts of native title — in this case complicated by concepts like “intertidal water.” It won’t take much to turn this into a “no one’s gonna take our barra” campaign up in the NT. The NT Government was yesterday pledging to oppose any permit system, despite Aboriginal community leaders committing to negotiation over access.

Justice Kirby’s citation of the Apology to the Stolen Generations in his judgement may be grist to the mill. One of the stalwart arguments of the anti-apology forces was that it would open the floodgates to compensation — that, in short, it wasn’t mere symbolism, but would have real-world consequences. This is what Kirby said:

Given the attention to, and nation-wide reflection upon, its making, terms and reconciliatory purposes, it is appropriate in my view for this Court to take judicial notice of that National Apology. The Court does not operate in an ivory tower. The National Apology acknowledges once again, as the preamble to the Native Title Act 1993 (Cth) already did, the wrongs done in earlier times to the indigenous peoples of Australia, including by the law of this country.

Those wrongs included the non-consensual denial and deprivation of basic legal rights which Australian law would otherwise protect and uphold for other persons in the Commonwealth. In the case of traditional Aboriginals, these right included rights to the peaceful enjoyment of their traditional lands and to navigate and to fish as their ancestors had done for aeons before British sovereignty and settlement.

Although the National Apology was afforded on behalf of the Government of the Commonwealth, with support of the Opposition and other political parties, and reflects an unusual and virtually unprecedented parliamentary initiative, it does not, as such, have normative legal operation. It is not contained in an Act of the Federal Parliament nor in a law made by any other Australian legislature with legislative powers.

Yet it is not legally irrelevant to the task presently in hand. It constitutes part of the factual matrix or background against which the legislation in issue in this appeal should now be considered and interpreted. It is an element of the social context in which such laws are to be understood and applied, where that is relevant. Honeyed words, empty of any practical consequences, reflect neither the language, the purpose nor the spirit of the National Apology.

That said, the Apology also reflects that this is a different Australia to that of 1997. One Nation has long since collapsed in ignominy. Pauline Hanson is now primarily associated with dancing and harvesting of electoral funding these days. No one complains about backyards being under threat. Political attempts to exploit the extension of native title might, one hopes, fall on stonier ground than in years past.

Moreover, Kirby’s view on the judicial importance of the Apology was not shared by the majority of Gleeson, Gummow, Hayne and Crennan. Nevertheless, there’ll be more than one politician — and not only in the Northern Territory — currently wondering how this decision can be used to anger conservative voters.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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