What they said ... `It's like Captain Cook coming back and taking our land all over again' Mr Galarrwuy Yunupingu, chairman of the Northern Land Council
`We have delivered a plan that produces fairness, justice and certainty' Mr John Howard, Prime Minister of Australia
In the first week of April, 1998, the Howard Government's Native Title Amendment Bill passed the Senate. The Senate had for the second time made changes to the Bill that are unacceptable to the Government.
The Government is now able to dissolve both Houses of Parliament and force an election on the matter.
It seems likely then that the question of native title will become a significant election issue.
If the Government were re-elected it could then call a joint sitting of both federal houses of Parliament to pass the three bills the Senate has refused to pass - on Wik, unfair dismissals and Public Service regulations.
Even if this occurs, it is probable the Wik issue will continue to be debated as Aboriginal groups are likely to challenge the Government's native title legislation in the courts.
Background
In 1992, in its Mabo ruling, the High Court found Aborigines had rights to native title under common law. This over-turned the previous legal fiction that Australia had been terra nullius, that is, unoccupied, at the time of European settlement.
In 1993, the Keating Government had passed its Native Title Act. This established a system for processing Aboriginal native title claims. It left the question of the status of pastoral leases relative to native title claims unresolved, though its preamble did indicate that pastoral leases extinguished or removed all native title.
In December, 1996, the High Court brought down its Wik ruling. The majority of judges found that two tribes of Aboriginal people, the Wik and the Thayorre, retained native title to lands that were part of pastoral leases. The ruling established the principle that pastoral leasehold did not extinguish native title and that the two forms of title could co-exist, that is, exist at the one time.
The Wik ruling also held that in the event of conflict, the rights of the pastoralist took precedence.
In May, 1998, the Prime Minister, Mr Howard, announced his ten point plan for resolving the uncertainty some claimed had resulted from the Wik ruling.
The ten point plan validated some leases; extinguished native title on some forms of tenure; gives Aborigines statutory access rights; toughens the threshold or eligibility test for lodging native title claims; removes or reduces some rights to negotiate over land use and access; allows pastoral leaseholders to diversify their land use for `primary production' without consulting native title holders; sets a sunset clause requiring that all native title claims be lodged within six years and sets up a system for voluntary agreements on native title.
On September 4, 1997, the Howard Government introduced its Native Title Amendment Bill to Parliament. This Bill aims to pass into law Mr Howard's ten point plan.
The Government controls the House of Representatives which has now twice passed the Bill, however, it does not control the Senate, which has now twice substantially amended the Bill
Wik, native title, the ten point plan and the Native Title Amendment Bill have received extensive attention on the Internet.
The full text of the Native Title Amendment Bill 1997 and the history of its passage through Parliament can be found on the Parliament of Australia Parliamentary Library website.
A detailed commentary on the Native Title Amendment Bill, its constitutional implications and its relationship to Wik and the ten point plan can be found on the website of Malleson Stephen Jaques Solicitors. This is a clear and useful discussion.
Arguments against the Howard Government's ten point plan
The major overall criticism of the Howard Government's Native Title Amendment Bill is that it strengthens the title rights of pastoralists and miners while reducing the rights of Aboriginal native title claimants.
One of the primary provisions of the ten point plan is that there should be automatic validation of all grants made on occupied Crown land since the 1993 Native Title Act and the High Court's 1996 Wik decision.
Indigenous groups and non government parties argue that there should be no automatic validation..
According to opponents of automatic validation, it would give legal sanction to arrangements that may disadvantage native title holders and may be illegal under the 1993 Native Title Act.
Critics maintain that only those grants that do not impair native title rights should be automatically validated.
Critics of Mr Howard's ten point plan also argue that it extinguishes many other legitimate native title claims apart from those that would be lost through automatic validation.
Both the Howard Government and those specifically concerned to protect aboriginal interests agree that private freehold grants and residential leases extinguish native title. Critics of the ten point plan are concerned, however, that it extends the extinguishment of native title to other forms of lease which the plan claims also effectively confer exclusive title on the leaseholder. Critics claim that this confers on some leaseholders stronger claims on the land than that granted by their lease.
There is also concern over the way pastoral leases are treated under the ten point plan.
The ten point plan allows pastoralists to diversify, that is, to use the land for other purposes than that for which the lease was originally granted. The only qualification is that the altered usage must be for activities regarded as primary production under taxation department definitions. This diversification can take place without the pastoralist consulting native title holders.
Critics maintain that this automatic ability to diversify significantly extends the rights of pastoral leaseholders beyond those granted in their original leases at the same time as it reduces the rights of native title holders.
In addition, it is claimed, there is no need to strengthen the rights of pastoral leaseholders at the expense of native title holders as the High Court's Wik ruling states that when the rights of the two are in conflict, pastoralists' rights take precedence.
The ten point plan would also largely remove from native title holders their ability to negotiate the sort of access to and use of pastoral lease land which best suited them. It has been claimed that the loss of the ability to negotiate is a significant infringement of the rights of native title holders.
The ten point plan would also only allow native title claims from Aboriginal groups which already have physical access to the land they are claiming. Critics maintain that this requirement is too rigorous and would, for example, deny the rights of Aboriginal groups who may have only recently been refused access to the land they are claiming.
There is also apprehension among Aboriginal groups and others that the ten point plan makes it more difficult for Aboriginal claimants to register a claim against land which is to be mined. According to opponents of this move there is no reason why it should be more difficult to lodge a land rights claim against mining properties than any other land.
Another related concern is that the states are to be given the power to make laws determining what will happen regarding mining applications on pastoral leases.
There are fears that some states may pass laws which will disadvantage native title holders.
The ten point plan would also allow government projects, such as road or rail development, to go ahead on vacant Crown land, without native title holders having the right to negotiate. This has also been seen as an infringement of the rights of native title holders.
The ten point plan also proposes that all water resources and airspace should be under Government control. Opponents of this view claim that there are legitimate native title claims to be made regarding numbers of water resources.
There is also criticism of the six year sunset clause contained within the ten point plan. According to this provision from the time the Howard Government's Wik Bill becomes law all native title claimants will have a maximum of six years in which to lodge their claims.
Critics claim that any group or person with a native title claim should be able to lodge that at any time. According to this line of argument, a potentially valid claim does not cease to be so merely because a certain period of time has passed.
Another major objection raised about the Native Title Amendment Bill as a whole is that it is potentially unconstitutional and is likely to be subject to significant legal challenges from indigenous groups and others. Because of these probable challenges, it has been claimed that it will not deliver the clear cut certainty that land users are said to want.
Mr Daryl Melham, the Opposition spokesperson on Aboriginal and Torres Strait Islander affairs, has claimed, `Instead of security of title, it would deliver to pastoralists and miners years of litigation and uncertainty.'
It has further been claimed that even if the current Federal Government won the next federal election and Mr Howard had his government's Wik legislation passed by a joint sitting of both houses of parliament, it would still be subject to legal challenge.
Daryl Melham has claimed, `Legislation that is legally unenforceable and unconstitutional cannot be somehow rendered workable by the political processes involved in a double dissolution election. Even if Howard won the election ... the legal problems would still remain.'
Mr Melham claims that there will be `years of courtroom confrontations'.
In response to assertions that native title and native title claims are delaying development, Mr Galarrwuy Yunupingu, chairman of the Northern Land Council has maintained that this is not the case.
Mr Yunupingu has claimed that mineral exploration in the Northern Territory `is proceeding apace' and that `the majority of mining and exploration is on Aboriginal owned land'.
It is further claimed that the extent of Aboriginal influence on mining development has been exaggerated as the Native Title Act only gives native title holders the right to negotiate with mining companies. They are not, it is claimed, able to veto mining developments.
Mr Yunupingu also cites the 1996 report of the Industry Commission, which, he claims, found that native title was not a factor in Australian firms locating off shore.
Mr Yunupingu's overall criticism of the ten point plan is that `[indigenous people's] property rights are to be sacrificed to bolster up the property rights of others.'
A related concern is that the effect of the Native Title Amendment Bill, which embodies the Howard Government's ten point plan, is racist. This claim is made because, it is argued, the Bill confers benefits on one racial group and removes them from another.
Even if, as some defenders of the Bill claim, this effect is incidental and only grows out of a desire to remove uncertainty, critics maintain that whether intended or not the consequences of the Bill are racially discriminatory.
Thus, it is argued, the Bill breaches the Racial Discrimination Act. (It has been argued that it is for this reason that the Howard Government has sought to have its Native Title Amendment Bill override the Racial Discrimination Act.)
Finally, it has been argued that the Bill is unworkable because it would leave the Government liable for massive compensation payments to those Aboriginal people whose native title rights had been extinguished.
Arguments in favour of the Howard Government's ten point plan
The Prime Minister, Mr John Howard, has defended his Government's ten point plan and the Native Title Amendment Bill that would make the plan law.
Mr Howard has claimed that the plan and the amendment bill represent a fair compromise between the rights and interests of pastoralists and miners on the one hand and Aboriginal native title claimants on the other.
Mr Howard claims that it is appropriate to automatically validate all grants of occupied Crown land made between the 1993 Native Title Act and December, 1996, when the High Court brought down its Wik decision.
Mr Howard claims that this automatic validation is appropriate because the common understanding in 1993, when the original Native Title Act was passed, was that pastoral leases extinguished native title.
In a televised address to the nation, given on November 30, 1997, Mr Howard claimed, `The nub of the problem is that in the Wik case, the High Court of Australia significantly changed what had been the understanding of most people about the law when the Native Title Act was passed in 1993.'
The Howard Government has argued that all grants made between 1993 and December1996 should be validated and thus reflect what was believed to be the legal reality when the grants were made.
Similarly the Howard Government has claimed that it needs to reassure pastoral leaseholders that rights they had previously believed were theirs still are.
Mr Howard has stated, `... we are prepared to guarantee to farmers, absolutely, that they would be able to carry on their normal farming activities and what they would regard as part and parcel of the ordinary operation and development of their properties without having to have any of their activities vetted or approved by any native title claimants ...'
This is the argument that the current Government has used to justify allowing pastoral leaseholders to alter their land use so long as the activities they begin are termed primary production for taxation purposes.
The Howard Government has also made it more difficult for Aboriginal groups to lodge a native title claim. It is necessary under the proposed legislation that one or more of the claimants be able to demonstrate an on-going physical connection with the land claimed.
Mr Howard has justified this by stressing that his government wants to discourage frivolous claims that would cause unnecessary difficulties for pastoralists.
Mr Howard has stated, `... any claims you [Aboriginal people] make have to be fair dinkum.'
The Howard Government has also expressed concern that the possibility of having to negotiate with native title claimants might discourage mining and mineral developers.
According to Mr Howard and others within his government, native title claims and negotiations with successful claimants result in long delays before mining projects became operational and so might lead some developers to decide not to go ahead.
One measure proposed within the ten point plan to address this supposed problem is to require a higher registration threshold for native title claimants before they are able to negotiate over land to be mined. What this means is that the government will require interested Aboriginal groups to demonstrate a stronger connection with land to be mined before they can lodge a claim and then negotiate.
Similarly, the Government has argued that major government projects, such as road and rail developments, should be able to proceed without impediment. It is for this reason, the government claims, that the right to negotiate would be removed from native title holders of land that was to be used for such projects.
The government claims that the right of automatic government acquisition of land for vital projects already exists and applies to all other property owners. There is not, it is claimed, any reason why it should not also apply to native title holders.
On the general question of the extent to which the Native Title Amendment Bill limits title holders' ability to negotiate, a number of Government spokespeople have noted that there is no absolute right to negotiate.
Tony Abbott, parliamentary secretary for Employment, Education, Training and Youth Affairs has claimed, `The "right to negotiate" is not a common-law right at all. It's a statutory right established under the Keating legislation that the former government was planning to amend because the development standstill on land subject to native title claim was hurting black and white Australians.'
The Government also maintains that the possibility of native title claims should not exist indefinitely. According to this argument, the on-going possibility of native title claims could create uncertainty in the minds of farmers and mining companies and so impede development.
It is for the reason, the Government claims, that it wants to introduce a six-year `sunset clause', after which period, native title claims could not be lodged.
The Government also stresses that where native title rights have been reduced, the native title holders will be compensated.
Mr Howard has stated, `...if, in any way, native title rights are diminished then full compensation will be payable to the native title holders ...'
Mr Howard has also stressed that his ten point plan does not extinguish native title rights.
Mr Howard has stated, `I said to the farmers that I wasn't prepared and the Government wasn't prepared to wipe out the right of Aboriginal people to bring native title claims ...'
Mr Howard has maintained that even under the provisions of his Government's native Title Amendment Bill, `the total area of the land mass of Australia, which in theory can be subject to native title claim, is ... 79 per cent.'
Mr Howard has maintained that after the Wik ruling the pendulum had swung too far in one direction and that there was a need to redress the balance so that the concerns of pastoralists and mineral developers could be addressed.
Mr Howard has maintained that his government's plan is a `fair and appropriate balance between the competing interests of different groups.' Mr Howard further claims that because his plan achieves this `balance' it cannot be accused of being racist.
According to this line of argument, if the plan is as even-handed as its defenders claim, then it cannot be said to be favouring one racial group against another.
Mr Howard also maintains that the changes his government seeks to make would introduce a needed certainty into the issue so that farmers and miners knew the conditions under which they could operate.
Further implications
There is concern that if a double dissolution election is called, centring on Wik, then this could become a race election. What is meant by this is that an election campaign focused on Wik could well divide Australians on racial grounds and lead to disharmony and ill feeling between Aboriginal and non- Aboriginal Australians. There is even the fear that an election fought on racial grounds could lead to violence, particularly in some rural communities.
Relatedly, there is concern that dispute over Wik and the Government's response to it could help to destroy the reconciliation process. (Reconciliation refers to the attempts being made to have Aboriginal Australians fully accepted and respected within the Australian community as a whole. Part of this process is that Aboriginal people can believe themselves so regarded.)
Those who fear that reconciliation is being damaged are concerned that Aboriginal Australians are coming to believe that whenever the law acts in their favour, as was the case with the Wik ruling, powerful special interests groups seek to have the law changed.
It has further been claimed that any election seen as based on race would damage Australia's standing in Asia.
It is claimed that it has taken Australia many years to overcome its image as an exclusively white, Anglo Saxon country with a prejudice against other nationalities, especially those with darker skins.
On the other hand, the Wik issue has the potential to cause anger and frustration within Australia's rural communities which are suffering the effects of reduced protection and an economic downturn in our region.
From a political point of view, the Liberal/National Party Coalition, currently in government, appears not to want to alienate a significant portion of its support base. This is particularly important for the National Party, which is almost entirely a rural party.
Another complicating factor is the emergence of the One Nation Party, led by Pauline Hanson. This party promotes highly conservative and, many claim, racist views. The One Nation Party has the potential to attract Liberal/National Party voters in particular who would like to see many of the effects of the High Court's Wik ruling undone.
Sources The Age
5/9/97 page 3 news item by Claire Miller, `Wik changes strike right balance, says PM'
1/11/97 page 11 comment by Mick Dodson, `Law and justice in grave jeopardy'
4/11/97 page 4 news item by Claire Miller, `Howard defends Wik plan against racism charge'
6/11/97 page 5 news item by Rachel Gibson and Tim Pegler, `Wik plan not racist, Fischer tells clerics'
6/11/97 page 5 news item by John Slee, `Black leaders turn up heat on Howard'
6/11/97 page 14 editorial, `Threat to reconciliation'
25/11/97 page 4 analysis, `Native title: the standoff explained'
12/1/98 page 3 news item by Janine MacDonald, `Labor condemns coalition's Wik list'
24/1/98 page 6 (News Extra) analysis by Shane Green, `A black view of Howard's way'
10/4/98 page 11 comment by Martin Flanagan, `Howard's vision on race fails us all'
10/4/98 page 11 comment by Tony Wright, `Why the Government is popping champagne'
12/4/98 page 1 news item by Margaret Easterbrook, `Church leaders critical on Wik'
12/4/98 page 20 comment by five church leaders, `Native title: Churchmen appeal to PM'
13/4/98 page 6 analysis by Adrian Rollins, `The story so far ... native title'
14/4/98 page 3 news item by Tony Wright, `Howard in big push for regional votes'
The Australian
5/9/97 page 15 comment by Daryl Melham, `Native title: the only certainty is uncertainty'
8/11/97 page 26 analysis by Stuart Rintoul, `Bad blood rising'
22/11/97 page 26 analysis by Michael and Georgina Windsor, `WIK made simple: a user's guide'
1/12/97 page 6 comment by Prime Minister, John Howard (text of television address), `Now is the time to end community uncertainty'
1/12/97 page 11 comment by Glenn Milne, `Howard's quick fix to Wik could mean no fix at all'
1/12/97 page 13 comment by Simon Longstaff, `Native title's common ground'
1/12/97 page 13 comment by Toby O'Connor, `Another swipe at the underdog'
1/12/97 page 13 comment by Dick Wells, `Clarified Act the first step towards consensus'
5/12/97 page 15 comments by Tony Abbott and Daryl Melham, `Something wicked this way comes'
19/1/98 page 11 comment by Galarrwuy Yunupingu, `Scare tactics won't mask a divisive plan'
14/4/98 page 4 analysis by Richard McGregor, `Race poll will revive dying One Nation'
The Herald Sun
29/9/97 page 19 analysis by Helen McCabe, `Land rights and wrongs'
23/1/98 page 18 editorial, `Labor's wrong way on Wik'
1/4/98 page 19 comment by Michael Duffy, `Locking in black Australia'
14/4/98 page 19 comment by Geoff Clark, `Chance to shake past'
Internet
Wik, native title, the ten point plan and the Native Title Amendment Bill have received extensive attention on the Internet.
The full text of the Native Title Amendment Bill 1997 and the history of its passage through Parliament can be found on the Parliament of Australia Parliamentary Library website at http://www.aph.gov.au/library/pubs/bd/1997-98/98bd171.htm
A detailed commentary on the Native Title Amendment Bill, its constitutional implications and its relationship to Wik and the ten point plan can be found on the website of Malleson Stephen Jaques Solicitors at http://www.msj.com.au/msj/opub/opub12.htm This is a clear and useful discussion.
A summary of the Wik 10 point plan can be found on the Prime Minister of Australia's Homepage at http://www.pm.gov.au/media/pressrel/1997/may/wik10act.html
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