By Jennifer Thompson
On September 4, the day the Coalition's Wik bill first went before parliament, John Howard told the ABC's 7.30 Report that "obstruction" of the bill would mean that Aboriginal people could have a "veto over the further development of 78% of the land mass of Australia". Howard's claim was both untrue and characteristic of the misinformation spread by the pastoral and mining lobbies in their campaign against native title.
Howard has threatened a double dissolution "race election" if the Wik bill is amended by the Senate, as it was last December. The threat of an election in which racist scaremongering might be stepped up is intended to convince the opposition and native title supporters to accept further compromises with a racist bill aimed at taking back the restricted rights won by Aborigines in the 1992 Mabo decision.
The National Indigenous Working Group, meeting in Canberra last month, called on Howard to convene a summit at which Aboriginal people, pastoralists, mining companies and state governments could negotiate a fair response to the 1996 High Court Wik decision.
Failing that, the NIWG has called on the opposition to vote against the Coalition's bill when it is resubmitted to the Senate.
Supporters of Aboriginal rights therefore need to be clear about the claims being made about native title.
Question: Is the 10-point plan — incorporated into the government's bill — a fair attempt to balance the interests of Aboriginal traditional owners and pastoralists and mining companies?
The 10-point plan is about extinguishing native title in fact, while giving the appearance of a complex response to a "difficult issue" in which the interests of pastoralists and mining companies on one hand, and Aborigines on the other, are balanced. It is de facto the "bucket loads of extinguishment" promised by Deputy Prime Minister Tim Fischer to agribusiness.
The bill sets an impossibly high threshold test for registration of native title claims, including the requirement to have maintained a physical connection to the land; disallows most oral evidence; and sets a six-year cut-off for the operation of the Native Title Tribunal, forcing those with later claims to go through the Federal Court, which will be much more expensive and time-consuming.
Native title will be extinguished forever on land used for public works, land grants from one government to another or to a statutory authority and land subject to community purpose leases — even where there is minimal or no conflict between the public and native title uses.
The bill also allows state and territory governments to compulsorily acquire native title rights and turn them into freehold or other exclusive tenures.
The bill requires native title holders wanting access to their lands to have had regular access arrangements at the time of the Wik decision.
Some state governments (particularly Queensland and Western Australia) have chosen to ignore the 1993 Native Title Act. They approved projects, especially mining, from 1994 without concern for native title. The bill validates these unlawful acts retrospectively.
Question: Won't Aborigines still have the right to negotiate over land use and developments on their traditional lands under the 10-point plan?
Through the right to negotiate set out in the 1993 Native Title Act, Aboriginal people are allowed a say in future developments, including mining on their traditional land. But native title holders will lose the right to negotiate with mining companies wanting to develop projects on pastoral leases, where most new mining projects take place.
The government's bill also restricts opportunities for Aborigines to benefit from economic development. The right to negotiate is completely abolished for "small scale" and "exploratory" mining activity, public and private infrastructure development, like the proposed new railway to Darwin, and any development within the boundaries of a city or town.
There would be no right to negotiate or any of the other benefits of native title for inland waters and seas. This is despite the Croker Island native title seas claim currently before the Federal Court, in which traditional owners are seeking to protect sacred sites and manage sea resources — not stop commercial fishing, as the government has claimed.
Ministers will also be able to bypass or short-circuit negotiations over the use of traditional lands, or to limit matters which can be negotiated.
Question: Isn't the Wik bill necessary because pastoral leases are threatened by the Wik decision?
The Wik decision did not take any rights from anyone. It asserted that the rights of pastoralists to graze animals, fence their land, build dams and erect homes could coexist with native title. The High Court also said that where any clash of rights arises, the pastoralists' rights prevail.
Holders of native title on pastoral leases would maintain access to the land for specific traditional purposes such as fishing, camping, hunting and ceremonies.
Question: Who will benefit from the bill?
The government is also proposing to expand significantly the activities pastoralists are allowed on pastoral leases to include cultivation, fishing, forestry, horticulture and even tourism. The bill says that any native title rights inconsistent with these activities will be permanently extinguished.
The rural lobby insists that "certainty" means exclusive possession of pastoral leases now and in any future developments in tourism, mining and agriculture. The bill would allow upgrading to freehold or other forms of exclusive tenure which extinguish native title.
The beneficiaries would include some of Australia's and the world's richest people — and up to 29 members of parliament, most of whom belong to the government that has proposed the bill.
Question: Would the amendments passed by the opposition last year fix this racist bill?
The Labor Party claims it is standing firm against extinguishment of native title, but actually, along with Senator Harradine, voted for most of the 10-point plan. With ALP and Harradine's support, six of the 10 points were substantially passed, another two were passed in part and only two rejected.
Writing in the last issue of the NSW ALP's Labor Times for 1997, Kim Beazley boasted that Howard could have had 90% of his bill passed if he had accepted Labor's amendments.
Voting together, the ALP and Harradine took the following rights from Aborigines:
- the right to negotiate on expanded legitimate "pastoral" activities — de facto pastoral tenure upgrades — to be replaced by "consultation";
- the right to negotiate on sea and waterway claims;
- native title rights on leases and land grants issued illegally since 1994;
The ALP also voted to take back Aborigines' right to negotiate on resource extraction, like logging and quarrying, on pastoral leases.
Harradine also used his "balance of power" vote to take the following native title rights:
- the right to negotiate on intertidal zones, public facilities and infrastructure developments, and developments on reserves like national parks; native title was also suppressed on such reserves;
- heritage protection;
- native title on so-called "exclusive" tenures — freehold and the lands mentioned in the Schedule of Extinguishment attached to the bill;
- fishing and hunting rights on lands where these are restricted for anyone else.
Harradine also voted against a proposal for indigenous land use agreements and for a proposal requiring all current claims to be re-registered.