By Stephen Robson
PERTH — The Court government tabled the Land (Titles and Traditional Usage) Bill in the Legislative Assembly on November 4 in an attempt to pre-empt the Keating government's legislation, expected to be introduced on November 16.
Court's Mabo bill represents the interests of the mining companies and big land holders who dominate the Western Australian economy. Its effect will be to further enshrine the denial of rights of Aboriginal people.
The most important words in the bill are those which provide for the "extinguishment or suspension of rights of traditional usage". These words are repeated frequently throughout the bill.
The preamble to the bill claims that the High Court ruling in Mabo has raised "serious questions among the people of Western Australia, and those dealing with them, as to the security and certainty of titles to land held by the Crown".
Under the bill, "native title" will be replaced by "statutory rights of traditional usage". Any "native title to land that existed immediately before commencement [of the Act] is extinguished". Instead the Aboriginal group would "become entitled to exercise rights of traditional usage in relation to that land".
Whilst rights of traditional usage can be exercised without being declared or registered, the rights must be exercised consistently with the act or a declaration of the Supreme Court or the minister. "Rights of traditional usage" continue only so long as members of the relevant Aboriginal group "maintain their traditional connection with the land in accordance with Aboriginal tradition".
But who determines traditional usage? Under the bill an Aboriginal group may apply to the Supreme Court for a declaration as to "whether, and to what extent, its members are entitled to exercise rights of traditional usage".
If a government minister is "of the opinion that members of the Aboriginal group are not entitled to exercise those rights or are exercising those rights unlawfully or contrary to this Act" or "there is a dispute between that Aboriginal group and any person (including members of another Aboriginal group) as to whether members of the Aboriginal group are entitled to exercise those rights", then the minister can apply to the Supreme Court.
There are further limits on traditional usage:
- "Rights of traditional usage" do not confer "ownership of, or control over, minerals, petroleum, forest produce or water on or under the land".
- Rights of title holders take precedence. If Aborigines actually gain "rights of traditional usage", they can exercise their rights only if doing so does not "restrict or impair" the title holder.
- Public access is not overridden by traditional usage.
- "The Crown or any statutory body, authority or officer" can grant title to land that may result in the "extinguishment, suspension or impairment of any rights of traditional usage".
A separate section of the act defines several ways that traditional rights can be ended:
- legislative or executive action — i.e., simply by authority of a minister;
- granting of freehold or leasehold title (including pastoral leases) unless it "expressly reserves any right of traditional usage";
- granting of a lease "under any law relating to mining";
- dedication of land for "public or other works";
- surrender of the rights by the Aboriginal group;
- the "loss by the members of the relevant Aboriginal group of their traditional connection with the land";
- the "death of the last member of the Aboriginal group entitled to exercise the rights".
Compensation, at the discretion of the minister, with an appeal available to the Supreme Court, can be obtained for "the extinguishment or impairment of native title". The maximum compensation that can be awarded is the amount that could have been determined under the Public Works Act 1902 if the land had been taken or resumed compulsorily.
The bill further restricts compensation by providing that:
- Regard is not to be given to the purpose for which the land is to be used following extinguishment, suspension or impairment.
- No compensation is to be awarded for any minerals or petroleum known to be on or under the land.
- Compensation is not to be awarded for loss or interference for which "compensation cannot be assessed according to common law principles in monetary terms".