Ten Native Title Predictions

The ninth prediction is that the upcoming 1999 referendum on changing to a republic and changing the Constitution's preamble is unlikely to address some of the most crucial issues concerning recognition of Indigenous rights in the preamble. To the extent that any proposed preamble simply contains a merely factual acknowledgment of prior occupancy of the Australian continent by Indigenous people and little else, the real debates about Indigenous issues - appropriate constitutional recognition of Indigenous rights, use of the "races" power, self-determination, reconciliation, compensation, etc - remain on the political sidelines.

The significance of the preamble's mention of Indigenous people is that an appropriate amendment to the preamble on Indigenous rights, in combination with constitutional recognition for that to be used by High Court judges to interpret the remainder of the Constitution, might produce a different judicial view of the scope of the "races" power, for example, and hence a different political legal result in terms of judging whether the Constitution permits the Commonwealth Parliament to pass laws which are disadvantageous to any degree for Indigenous people. That would be of significance for any constitutional challenge to the Native Title Amendment Act 1998 (Cth).

In 1997, the High Court seemed to think in Kruger that the Constitution offered little redress or protection for members of the so-called "Stolen Generation". In early March 1999, the battle for recognition and compensation for the Stolen Generation continues in a Federal Court hearing involving non-constitutional claims against the government of unlawful conduct, breach of statutory duty, breach of fiduciary duty, and negligence. If only half of the events relating to this matter in Robert Manne's article in The Courier-Mail on 3 March 1999 (at page 9) are recorded correctly, the incapacity of the Constitution (and maybe other laws) to prevent such treatment and compensate for it is a source of moral and political as well as legal criticism, and maybe even a catalyst for constitutional and legal reform.

The tenth and final prediction is that how we - you and I, and the High Court, and John Howard, Kim Beazley, Peter Beattie, and others - reconcile principled treatment of commercial interests and principled treatment of native title interests is what Australians at the end of the 21st century will judge us by when they decide whether or not we were a community of principle, committed to fair and just treatment of Indigenous and non-Indigenous interests alike.