No reconciliation with racism: Stop the Wik bill
By Jennifer Thompson
The tales and insults traded back and forth over recent weeks between Paul Keating and John Howard, the Labor and Liberal parties, former Labor power-broker and Packer hack Graham Richardson and former Labor Attorney General Michael Lavarch have not shed much light on the debate over the government's Wik bill.
Liberal Senator Nick Minchin attempted to defend the government's bill as non-racist in the November 11 Australian letters to the editor.
He described native title as a new sort of property right, conferred by the High Court's Mabo decision. This "additional" property right, peculiar to Aboriginal and Torres Strait Islanders able to demonstrate their traditional connection with the land, survives only where it has not been extinguished by a government granting others exclusive possession of the same land, he said.
Margaret Gardiner of the Victorian Mirimbiak Nations Aboriginal Corporation responded two days later, pointing out that native title was the recognition in western law of indigenous people's relationship with the land according their law and custom, "not a 'grant'".
She was reaffirming what Aboriginal people knew before the 1992 Mabo decision: native title exists, independently of the house on the hill, on the basis of indigenous people's relationship with the land long before white colonisation.
The government's attempt to extinguish that title by an act of parliament is racist, constitutionally dubious and a new dispossession of people already decimated by colonisation.
Whether the previous Labor Party government believed that native title rights were extinguished by pastoral leases or not (the focus of the current Keating-Howard word game about who's the biggest racist) isn't important since Labor wasn't prepared to legislate extinguishment in their 1993 bill. But for that it extracted plenty of other concessions from Aboriginal negotiators, including the blanket validation of pre-1994 land and development grants.
The debate has however lured others, who'd been lurking quietly in the background hoping to reap the benefits of the bill, to state their position. In particular, the Minerals Council of Australia's executive director R.C. Wells is openly welcoming the bill as an opportunity to reduce the "uncertainties and delays" of the Native Title Act.
That legislation, passed by the Keating government, has required mining companies and developers to negotiate with Aboriginal native title claimants anxious to protect their cultural and environmental heritage and gain some of the economic benefits of mining on their traditional lands.
Forty-two per cent of Australia is covered by pastoral leases and that's where the majority of new mining activity occurs. The Howard government's legislation proposes that, even if native title holders pass a prohibitively strict threshold test on those lands, they would lose the right to negotiate with mining companies.
Wells complained about overlapping native title claims requiring multiple negotiations for a single mining project. Ironically, the bill's provisions to streamline and clarify the operations of indigenous representative bodies managing native title claims — supported in part by the National Indigenous Working Group — allows pastoralists, miners and others to bypass representative bodies, which also encourages lodgement of multiple claims.
In September, commenting on the relative quiet from mining companies in the debate, Father Frank Brennan told Green Left that the miners are basically getting everything they want in the legislation: that Aborigines' right to negotiate at both the exploration and development phase be taken away, along with the right to negotiate on pastoral leases.
On the surface, the ALP's resolve to respond in a principled way to the Coalition's bill seems to have stiffened with the large protests against the bill and the determination of the Aboriginal movement and the Greens and Democrats' opposition. Leader Kim Beazley says the ALP is prepared to go to a double dissolution election if its amendments to the bill are rejected.
Despite the tough talk, however, the ALP has kept its amendments secret. This secrecy, says Democratic Socialist spokesperson and ACT election candidate Sue Bull, "leaves the depth of Labor's opposition very unclear, to say the least. "More significantly", she added, "the ALP's failure to make its exact position clear, to mobilise public opposition to the bill on that basis, and to provide much needed resources to the growing movement to defend Wik all indicate that its protestation's against the Coalition's attacks on native title amount to little more than electorally motivated posturing."
In contrast, the National Indigenous Working Group has suggested a new six-point plan for "a non-discriminatory regime" incorporating the protection of all valid, existing non-indigenous interests in land and waters.
Heading that plan is a proposal that native title, in accordance with the Mabo and Wik High Court decisions, be given full recognition by enshrining it in the constitution (as it is in other countries), through consideration by the Constitutional Convention. The plan also includes:
- <~restoring native title after the expiry of
valid non-indigenous land and water holdings, such as pastoral
leases;
lrequiring the agreement of native title holders to suppress or extinguish native title rights, and that compulsory acquisition be only for essential public purposes in the national interest;
- the right of negotiation for native title holders in compulsory acquisitions, exploration and mining leases, and protection of significant sites;
- just terms of compensation for suppressing or extinguishing native title; and
- that a Commonwealth commissioner be able to investigate and determine native title claims, rather than state tribunals, as proposed by the government.
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