In 1993, the Australian parliament passed the Native Title Act after one of the longest and most contested debates in the nation’s legislative history. One side of the house broke into spontaneous applause, while the other declared it a day of shame.



Michael Lavarch was the federal attorney general at the time. In this year’s Mabo Oration, he talks about the years of missed opportunities that followed, and the need to make an enduring settlement.

I came into the cabinet of the Keating government following the 1993 federal election. My role as attorney general came with membership of the Mabo committee of ministers and subsequently specific responsibilities to establish the national native title tribunal.

It was a heady time to be in the cabinet. The prime minister’s personal commitment and energy to securing the legislation and the wider package of measures was enormous.



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The opposition to the government’s agenda from a range of powerful interests was significant. While we understood the historic importance of the Mabo decision, ministers and backbenchers alike fretted over the political cost of putting so much capital into an agenda that many Australians probably saw as remote to their immediate day-to-day concerns.

The Keating government response to Mabo was, at its heart, the right approach. But it did not answer all the fundamental questions needed to reach a full and enduring settlement between Indigenous and other Australians.

The Keating government showed resolve and vision, but ultimately it came up short, as demonstrated by the sentiments which underpin the Uluru statement.

But possibly the slow-burn component within the native title regime – the entitlement of native title holders to compensation – could assist the achievement of a lasting settlement.

In his much-celebrated Redfern Park speech in 1992, prime minister Keating described the Mabo decision as a practical building block of change. But negotiations on the government’s response to Mabo were understandably difficult and protracted. At key junctures, the government released discussion papers and, in September 1993, an outline of the proposed legislation.

It would be accompanied by a wider “justice and economic” package. The measures combined remain critical unfinished business.

Compensation for dispossession

The Native Title Act established the land fund as the second component of the Keating government’s response to the Mabo decision. This fund recognised that contemporary Australia is built on Aboriginal dispossession.

The Indigenous Land Corporation, created in 1995 following another protracted parliamentary debate, would manage the land fund.

The fund was to be capitalised to $1.46bn over 10 years, and be used to acquire properties and grant title to Indigenous corporations.

It acknowledged that many Aboriginal nations and Torres Strait Islander people would not benefit from Mabo or Native Title Act processes. The pattern of European settlement had extinguished native title, and there had been widespread displacement and wholesale disruption of Aboriginal nations.

The unfinished business of social justice

The third component of the Mabo response was to have been a social justice package.

The concept arose in the negotiations of the Native Title Act, but in reality was another manifestation of the calls Aboriginal peoples have since 1788 made for true and meaningful acknowledgment of prior and enduring sovereignty.

The issues that might have been addressed in the package were not new then, and they are not new now. They related to the health, economic and social disadvantage of Indigenous people compared with the wider Australian community.

The Australian people have been shown that the alarmist rhetoric at the time was entirely unfounded

The task of consulting Indigenous communities on what measures should be contained in the package was given to the Aboriginal and Torres Strait Islander Commission.



The process was, for its time, the most thorough engagement process undertaken with Indigenous people on their aspirations for the future.

Achievement of the goal of constitutional recognition was accepted as taking “a number of years”. But notwithstanding the period of development required, the report urged the establishment of “firm timetables”.

It noted: “Indigenous people have been too often betrayed over the last two centuries, by fine words that have soon withered in the grim drought of inaction and indifference.”

In relation to the social justice package, it’s fair criticism to say the years of drought started with the final year of the Keating government.

The third component of the Mabo response was not delivered. The scope of potential measures could not have been achieved in that timeframe, but there was no roadmap or acceptance of the proposed legislated principles of social justice.

From high-water mark to low tide

In his 2013 social justice and native title report, commissioner Mick Gooda reflected that “sadly the Native Title Act as it was drafted in 1993 reflects the high-water mark of our native title”.

The Native Title Act and the land fund have significantly contributed to the Aboriginal land estate – just over 40% of Australia. But the reality of what this means in social, cultural and economic empowerment of Indigenous peoples is more mixed.

It’s difficult and protracted to establish native title through the tribunal and court processes. On the other hand, governments and other interest holders like pastoralists and resource companies have become more willing to strike agreements.

Claims under the act have provided meaningful opportunities for native title holders, but inevitably, given the disruption to Indigenous nations, they have been at the centre of stress and conflict within communities.

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Prescribed bodies holding native title rights have often struggled with the resources required to carry out the responsibilities that flow from determinations, and take best advantage of the rights acquired.

The ILC has grappled with hard questions about its focus and priority. To what extent should it privilege those people and places where colonisation and settlement have extinguished native title? Should it be guided by concepts of reparation for dispossession, or economic utility and earning potential?

Even so, 25 years on from the passage of the Native Title Act and [the formation of] the land fund, both initiatives should be seen as successes.

Many Aboriginal and Torres Strait Islander communities have benefited in cultural and material terms. And the Australian people have been shown that the alarmist rhetoric at the time was entirely unfounded.

Facebook Twitter Pinterest Dancers from East Arnhem Land open the Uluru convention in May 2017. Photograph: Lucy Hughes Jones/AAP

Makaratta and a voice

The Uluru statement proposed a constitutional amendment to give a voice to Aboriginal peoples and Torres Strait Islanders to federal parliament.

It said a makarrata was the culmination of the agenda. It proposed a commission to supervise the process of agreement-making between governments and First Nations.

In the next few months a parliamentary committee will report on constitutional recognition. It will analyse the Uluru proposition and potentially identify how the constitutional amendment could be framed, how the advisory body envisaged by the parliamentary voice could be established, and what its mandate might be.

It’s insightful to contrast the Uluru proposals with those in the recognition, rights and reform report proposed by Atsic all those years ago.

Certainly the earlier proposals, which also followed a very extensive consultation process with Indigenous communities, can be seen to be far more ambitious or radical, depending on your viewpoint.

The recognition, rights and reform report noted there was overwhelming support for constitutional recognition.



The report did not propose what form the recognition should take, but said a thorough process of regionally based consultations was needed to settle this question – including a national constitutional convention.

The Uluru proposals are, in my view, beneficial and, in the great scheme of things, quite modest

The authors of the report would not have envisaged the consultation would take 25 years, but it might be argued where we are now satisfies the recommendation for extensive consultation.

In this respect, the passage of years has not greatly altered the aspiration or the means to pursue it.

The Atsic report noted that a treaty underpinned by regional agreements was widely supported in consultations. The recommended process was for a framework agreement of negotiation principles, followed by an independently sponsored negotiation between the parties.

This does sound similar to the makarrata commission advanced by the Uluru statement.

The Uluru proposals are, in my view, beneficial and, in the great scheme of things, quite modest.



The proposal that First Nations peoples should be heard directly by lawmakers on matters concerning the reliance on the race power should be uncontroversial.

Other laws, such as that which enabled the Northern Territory intervention – a shameful recent example of poorly considered actions inflicting great damage on Aboriginal communities – should not be enacted without the rigour of prior consultation and advice.

The detail of how an advisory body would operate is clearly vital and will need to be developed as a backdrop to a referendum.

I hope the parliamentary committee report is able to map a way forward that convinces the prime minister. It would be tragic if the goodwill of recent years to gain constitutional recognition came to nothing.

The proposal in the Uluru statement for a makarrata commission requires no constitutional change, and is the most recent expression of the need to address a great unresolved tension in contemporary Australia.

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The sovereignty of the First Nations has never been ceded by them and the basis of British colonisation has never confronted this fact.

I don’t pretend a makarrata process would be easy. It certainly proved beyond the political will of the reformist Hawke-Keating period and it has not been taken up nationally in any serious way since then.

But maybe there is some reason to think that things might change.



The Victorian government is pursuing a treaty via a treaty advancement commission established earlier this year. The fact that this process arose from the consultations organised by the “Recognise” initiative about possible constitutional recognition showed a refreshing willingness of the Victorian government to listen to its Indigenous communities.

If the Victorian process proves fruitful, and other state-led processes emerge, then the road forward at the national level would become easier.

Still unsettled

With the passage of a quarter of a century, the Mabo decision and the government response has not diminished in historic importance.

The Keating government’s response was imperfect, and the failure to address the social justice package left difficult issues unsettled.

But it was hugely important to Australia. Along with the inquiry into the removal of Aboriginal children, which produced the Bringing Them Home report, and the commitment to Atsic as a representative body, it was a high-water mark compared with the years that have followed.

Australia still has much to do to provide First Nations people with a full opportunity to prosper, and give the nation and the world the enormous benefit of the world’s oldest living cultures.

Closing the gap, constitutional recognition and a proper addressing of the question of sovereignty remain pressing matters.

We need leadership, vision and goodwill. Without it, all of us will live a life unfulfilled of the potential that this continent gives us.

• Michael Lavarch AO is emeritus professor at Queensland University of Technology.

• This is an edited version of the 2018 Mabo Oration given on Wednesday at the national native title conference in Broome, Western Australia.

• Comments on this article have been pre-moderated to ensure the discussion is on the topics that have been written about in the article.