 I acknowledge, along with you, the fact that we're on the Ngunnawal and Ngambri peoples lands, and as always in the parliament we acknowledge that as well, so I have very fond memories of many of those people, so I'm glad that we're acknowledging them. I want to acknowledge my brother Meek, who's the, I should say Professor Dodson, director of the National Centre for Indigenous Studies here at the ANU, Professor Richard Baker. Richard is doing some wonderful work with the young students we get from time to time to come and work in the parliament with us, so I want to, and he does many other good things from my memory of his field of activity as Pro-Vice Chancellor, but certainly those young people who have the opportunity to work in the parliament, it's a great contribution to us, but also I hope to them. Distinguished ladies and gentlemen, and thank you for coming out tonight, and I want to thank the Vice-Chancellor again for this opportunity to make this address in honour of one of the great Australians of our time at EQuirky Marble, and it's a great honour for me to be here at the university to make this speech. Mr Marble was a man of history. He celebrated his Mer and Torres Strait Islander history, and he made Australian history, so it's the history that I'll turn to start my remarks. On the 26th of January 1788 the British flag was raised at Botany Bay. The land now part of the city of Sydney was the territorial property of the Gadigal and the Bidigal people of the Aurora Nation. It is held and looked after by them for countless generations. With a cheer and a toad of rum, the sound of the fife and drum, the colony of New South Wales was proclaimed. Over time other colonies were established in other parts of Australia, or by separation of their territories from New South Wales. Queensland was one of those. Over time the boundaries of the Queensland colony were stretched to include offshore northern islands at around 1859. The lines on the map between Papua New Guinea and Australia included the Murray Islands, the largest of which is Murray or Mer. In 1912 the island of Mer was declared a reserve under the Land Act 1910 of Queensland. In 1936 Eddie Marbeau was born on Mer. In 1982 Eddie Marbeau and four other Murray Islanders commenced the proceedings against the State of Queensland. They claimed ownership of passers-of-land on Mer as the holders of native title under their customary law. The litigation bearing the names of the men we commemorate tonight transformed modern Australian common law. They changed our history and they changed it for the good. On the first floor of the parliament I walked past the display of foundation documents of Australian law and society. This week I watched a group of young school children walking through this area on their tour of the parliament house. Under the banner there's a special part of the parliament set aside and under this banner there's this note that says the parliament is the law making body which determines the rules of the society by which people live. A couple of young boys were looking at a case where a page out of an old notebook from school was on display. In a careful hand with coloured pencils Eddie Marbeau had drawn the shape of the island of Mer noting the family names associated with tracks of land including his own family's name. On the same floor there are other documents and paintings on display. The Urukala Bark painting, the petition, the Barunga petition and Kevin Rudd's apology. Each of these artefacts talk to our most significant national historical challenge. How can we recognise and acknowledge the fact of Aboriginal and Torres Strait Islander peoples as prior owners of this land we now call Australia. Mr Marbeau's map and the petition and the petitions call for all of us to recognise and acknowledge the fact of occupation. To rethink the received colonial settler narrative. The reminders of the exertion of force by and on behalf of the British authorities. The fact is the British did not ask permission to settle. The fact is no one conceded and no one consented. The fact is the judiciary and the legislature have become less generous since the Marbeau judgement. The fact is we need an agreement or a treaty to settle not only the ongoing legacy of Terranolius but also the legacy of its existence. The first peoples were in this land as owners and governors of their own respective countries before and when the first colonists arrived and began to gradually settle and occupy their territories and rule over them. Today those native title holders under the Native Title Act are evidence of their descent from their ancestors and are the living testimony of their prior occupation of these lands and waters. They and their people proclaim continuing occupation. This land is not and has never been Terranolius. The only thing that threatens this is the application of extinguishment written into the Native Title Act. It's a more sinister concept than its existence as a legal mechanism because in most cases it requires the consent of the very people that hold the Native Title. This is neither honourable or generous. It belittles the vision and motives of Mr Marbeau and the other families who fought and won a seminal victory in the High Court. The Chief Justice of Australia who heard the Marbeau case, Gerard Brennan, made this determination on the 3rd of June 1992. The common law of Australia rejects the notion that when the Crown acquired sovereignty over territory, which is now part of Australia, it thereby accepted the absolute beneficial ownership of the land therein and accepts that the antecedent writes an interest in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty. Those antecedent writes an interest thus constitute a burden on the radical title of the Crown. His decision in the Marbeau case ruled that the Miriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mir. Rejecting the notion of Terranolius, the Native Title was found to have survived the acquisition of sovereignty. Of course the High Court as an instrument of our constitution cannot rule on the issue of sovereignty. And it took ten long years to resolve the Marbeau decision for the claim and it's a poignant, tragic tragedy that Quake in Marbeau did not live long enough to see the decision of the High Court to celebrate and recognise what he knew in his heart and in his mind to be the truth. His country was in Mir. From our viewpoint in history we see the case that bears his name as a major landmark and a signpost for our future. But the road is long and at times the travelling is hard going. The Marbeau decision led to an interruption of controversy and alarm in much of mainstream Australia. Marbeau was an affront to the security provided by the lie of Terranolius. The Commonwealth Parliament in 1993 under the Labor Government of Paul Keating enacted the Marbeau Act. The Act sought to build on the common law as defined in the Marbeau case. The integrity around this today raises serious questions. In my own state of Western Australia, in which more than half of the land was legally unalienated and mineral rich, the government of the day objected to the Marbeau judgment and to the legislation. The State Parliament in Perth passed a law to extinguish native title from the moment of colonisation and challenged the Commonwealth Act. The High Court upheld the validity of the Native Title Act and found the Western Australian law to be invalid. On a personal note, that decision enabled the Aru people to pursue our own native title interest and reclaim our country. My brother Meek and I have a great good reason to forever be grateful to Quirky Marbeau and his pioneering vision and courage. Another milestone along this road to reconciliation took place in 1996. The High Court in the Wick case found that native title and pastoral leases could co-exist. The pastoral leases were a feature of the colonial period, trying to rein in the peacocking of the best lands by the squatters. There was at least some consideration by the colonial authorities of the rights of Aboriginal people to travel across those leases. Such rights themselves became caveats on the pastoral leases until gradually being modified. The Wick case was in some regards a simpler matter of concurrent and co-existing rights but with native title rights yielding if there is to be a conflict with the leaseholder. Immediately at the time, there were sections of our community that were absolutely ill-informed and the reaction was disgraceful to that notion of concurrence and coexistence. And we've seen as an indicator that the generosity of the court was already starting to harden against the spirit that we'd hope would flow on in some regards in the judiciary towards the existence of native title. And of course Prime Minister Howard could have used the Wick judgement in a positive way as an opportunity to advance reconciliation. The Howard ten point plan led to the 1996 amendments to the native title act and in the words of his deputy of the time, Tim Fisher, delivered bucket loads of extinguishment. This legislation was in my view intended to reinstate Terranolius or to remove what Justice Brennan called the burden on the radical title of the crown. As a sweetener however, the amending act provided and delivered opportunities previously denied except under some statutory land rights act. They opened up the opportunity for agreement making which unfortunately is too often structurally tied to extinguishment. This land use agreements could be negotiated under the act whereby native title holders and other parties could agree on the issue of native title lands to their mutual benefit and for economic development. Far too often the price of that opportunity has been too high in my view because it has involved as I said previously the requirement on the native title holder to agree to the extinguishment of the land that they've just had returned to them under native title. So this leaves a lingering burden on the shoulders of the native title holders going forward. Nevertheless there's been hundreds of agreements and they've been negotiated across Australia and especially in Queensland but also in my home state of Western Australia where nearly agreement particularly with the Noongar people at the time had been hailed as a major landmark, a treaty in all but name for the people of the South West. In the Senate this week the validation of indigenous land use agreements has been under debate. There's a tension between lawmaking in the parliament, the decisions of the courts and the aspirations of Aboriginal people to negotiate agreements that retain their rights. The concept of the separation of powers is not always empathetic to the sense of justice held by Aboriginal peoples. The Noongar agreement came unstuck with the Maglade decision. With the recent amendments in the parliament this agreement will go back to the process of registration for the Noongar people to settle. At every step the Labor Party has pushed for consultation on these bills through a Senate committee, through submissions, through consultations with representatives of the native title holders as well as the native title representative bodies. At every step we've remembered the legacy of Quirky Marbow and understood the fact that native title rights now recognised in the common law should not be changed, extinguished or modified at the whim of governments. They do not exist as a gift to the parliament as an act of largesse by the government of the day. I understand that the common law gets translated into legislation but this is a unique decision that the High Court came to that native title is in our common law and is held by the native title holders. So native title rights are ongoing rights with deep roots in our common law held exclusively by native title holders. Amendmenting legislation as I've said should always require the free, prior and informed consent of native title holders. The native title act much amended over time has evolved in complexity and function. Quirky Marbow would probably have some difficulty understanding how his vision has become so brutalised by the parliament. The Australian Law Commission in its 2015 review Connecting to Country has identified key areas of reform that are yet to be implemented by the government. Indeed we still await a formal response from the government to its recommendations. From my own perspective as a native title holder and as a legislator these days I see five key areas where the functioning of the act requires rework, not least to better align to the vision of Eddie Marbow and these are in summary the need to rethink the presumption that an agreement for alternative use of native title lands requires extinguishment of native title rights. The need to rethink the decision making process required under the act. The need to improve the fungibility of the native title that is held without extinguishing that title or that title being lost to the community. The need to address the rights of compensation for the loss of enjoyment, access and use of native title lands and the need to change the owners of proof and the burden from native title applicants to the crown. The native title act can be refashioned to shift the point of balance towards the ongoing rights, interests, needs and concerns of Indigenous Australians. Doing so would restore the act to its fundamental purpose and that is to recognise and protect native title in the interests of the Indigenous Australians and our shared national future. In the past month we have seen another expression of the will of Indigenous people to be recognised and acknowledged as the original owners of our land. Last month at Uluru, in the spirit of constitutional conventions from which we had been previously excluded, many Aboriginal and Torres Strait Islander peoples gathered. They set out to deliberate and report back to the Prime Minister and the Leader of the Opposition through the Referendum Council on Constitutional Recognition. Their one-page document, Uluru Statement from the Heart, issues a series of challenges to the Parliament and to the people of Australia. It calls for constitutional reform to empower our people and to take a rightful place in our own country. It calls for the establishment of a First Nations voice entrenched in the Constitution. It calls for a Macarata Commission to supervise a process of agreement-making between government and the First Nations and truth-telling about our history. From a parliamentary perspective, we look forward to the report on those consultations from the Referendum Council at the end of the month. Hopefully working through these issues in the Parliament, in the time ahead, will take place in the spirit of constructive optimism. To formulate a successful referendum, as most of you know, a referendum outcome, especially in the next year, requires a bipartisanship. Indeed, it requires cross-party consensus will be needed and will have to be carefully shaped and crafted. In my personal view, constitutional reform, a treaty and a strong Indigenous voice have never been mutually exclusive. One does not come at the expense of the other. Of course I support agreement-making. A treaty or agreements, whether one or many, would be acknowledging, would be acknowledgement following the Marbeau decision that Terranullius is a discredited, outmoded legal fiction and that this land was taken from Aboriginal peoples and would provide some justice to those Indigenous peoples. We would also pick up on the opportunity that was lost when the native title negotiations focused solely on land tenure at the time. I never held the view that Marbeau was only about land tenure. In fact, when my views clash with some of my colleagues at the time who were negotiating these matters, I was asked to discontinue my involvement in the process and, due to which, I left it to those who settled the issue with the Prime Minister at the time, Mr Keating. There was no treaty when this land was colonised and in the future a treaty will be a strong step for a mature and harmonious nation. The work of Labor governments in the states of Victoria and South Australia show us that it can be done. Of course we need a strong Indigenous voice. For too long Aboriginal and Torres Strait Islander peoples have been denied a voice excluded from decision making processes about our own lives. Indigenous people want to reset our relationship with government and we want to be heard. We have been calling for this for a long time. Working to make a voice effective within the processes of parliament and capable of support from the whole Australian population in a referendum is a key challenge. A challenge Labor will consider carefully when we get the recommendations. We look forward to more information on how the idea of an entrenched voice can become a systemic, secure and successful legislative reality. We need to address the systemic racism that exists in our nation's founding document the Australian Constitution. We want our past to be acknowledged and we want to be involved in decisions about our future. The Uluru Statement called for a First Nations voice enshrined in the Constitution and a Macorata Commission to supervise a process of agreement making between governments and First Nations and truth telling about our history. Many rejected the idea of any symbolic acknowledgement in what they saw as a racist document, our Constitution. This may well be a statement from the heart. It is time to acknowledge that Indigenous people were not included in the Constitution conventions that were held all over Australia in the lead up to Federation. The Australian Constitution was written by people who thought Indigenous people were lesser beings or a dying race with no sense of land use or development. The dynamics of racism in Australia is institutional and structural. The foundations of racism are entrenched, persistent in our nation's founding document. The question we need to work through is not about choosing between treaty, a voice or constitutional recognition. The question is whether Australia is able to move forward towards reconciliation. Be that in the form of a treaty or an Indigenous voice enshrined in the Constitution while the nation's foundation document remains in its DNA, a flawed and racist document. I understand this because I was a member of the expert panel on constitutional recognition of Indigenous peoples, which was tasked to report to the government on possible options for constitutional change to give effect to Indigenous constitutional recognition and to assess any legal consequences that might flow. In 2012, the expert panel delivered our report, which made a series of recommendations, including a statement of acknowledgement in the Constitution relevant to the lawmaking power in Indigenous affairs that proposed near 51.8, a modification to the wording of the Commonwealth lawmaking power in Indigenous affairs, amending what exists under 51.26, taking race out of it and putting people in there whilst you obviously remove 51.26 in its current form, a constitutional prohibition on racial discrimination, a new proposed 116A, the removal of a provision that contemplates states denying people from voting because of their race, section 25 of our Constitution. These recommendations recognise that the government has the power to make laws about Indigenous people, but the laws must be beneficial and give Parliament guidance. It would be a mistake to consider the Constitutional reform as merely symbolic. Nothing about our Constitution is symbolic. There's not even a preamble that could point us to something symbolic. The words in the Constitution, the reference powers that the Parliament uses to make laws, they are words with real power. They are words that guide the Parliament in making laws and the courts when they judge the validity of those laws. Changing powers in the Constitution and giving clarification around how such powers can be used is not mere symbolism, nor is it mere words. Having an Indigenous voice enshrined in the Constitution without amending the Constitution to remove racially entrenched ideologies is puzzling. It seems to be assumed that an Indigenous voice in the Constitution would be strong enough to challenge the entrenched structural racism which shapes the policies and laws that affects the lives of Aboriginal people without removing these racist elements of the Constitution that exist there now. We know these policies and laws. They are policies of assimilation, of forced social and cultural change. They are policies that continue to remove children from their families and country and culture. They are policies that cause Aboriginal and Torres Strait Islander people to make of approximately a quarter of Australia's prison population despite making up 3% of the total population. These are the policies that have led to Indigenous Australians dying a decade earlier than non-Indigenous Australians. Policies that repeatedly fail Australian people, Aboriginal people. Policies that Quirky Marble challenged with his life and would do so today if he were alive. There is no coincidence that these policies exist alongside a Constitution that is the legacy of the colonial settler state narrative, a narrative that sought Aboriginal and Torres Strait Islander people as lesser beings and Australia as a land belonging to no one. If we are going to clean up the mess that racism has made in Australia in the hope that we might one day achieve reconciliation we have to do it properly and honourably. The report of the referendum council at the end of the month deserves and requires weighty consideration. If the referendum council, if its recommendations do not gather broad parliamentary support then it will fail and there will be no referendum. If there is broad support across the parliamentary spectrum then that will require careful consideration of a bill and explanatory memoranda that can pass through the challenging and complicated process of parliament. It requires then that the question then can be put to the Australian people that will pass the high bar of a referendum. Aboriginal and Torres Strait Islander people, whichever way this goes will continue to call for a treaty and a strong voice for Indigenous peoples, particularly say if nothing is done. These calls only highlight in my view the need for constitutional reform. Australia cannot move forward while our founding document, our birth certificate embodies our racist past. The stubborn stains of our racist constitution must be raised. Eddie Quirky Marlboro would have expected nothing less. Eddie Quirky Marlboro was a great Australia. We can find the Marlboro spirit within each of us and work together to build a great Australia free from racism, one that's honourable and one that treats its citizens fairly and justly. Thank you.