By Graham Matthews
Les Malezer, executive director of the Federation of Aboriginal and Islander Research Associations and member of the indigenous working group negotiating proposed amendments to the Native Title Act with the federal government, was keynote speaker at the Ipswich Labour Day dinner on April 26. In his speech, Malezer addressed the most common misconceptions about native title and summarised the case being presented by the Aboriginal negotiating team.
"It's not as though Aboriginal people have been given something they didn't have before", Malezer said, referring to the provisions of the Native Title Act.
The High Court's decision on Mabo in 1992 simply confirmed that native title was an existing right in common law, extending from the British colonial period. The Native Title Act codified this existing title in legislation and imposed limitations on its application, a method for determining title and negotiation procedures.
"The Wik decision doesn't create a situation that people don't understand. The pastoralists have the same rights they had before", Malezer said.
Proposed amendments to the Native Title Act "are going to make it so difficult for Aboriginal people to determine native title and so difficult for Aboriginal people to negotiate in situations when native title is determined, that it might as well be extinguished."
The Aboriginal/Islander working group does not exclude some amendments to the Native Title Act, or negotiation with the federal government. The group does reject amendments such as the blanket validation of all titles issued by state governments on crown land since 1994 (when the Native Title Act was proclaimed).
"We're also arguing there be no de facto extinguishment of native title by raising the onus [of proof] on Aboriginal people", Malezer said. The working group would also oppose any codification that would limit native title to rights such as access, hunting and gathering. Physical proximity clauses and a sunset clause on claims were also completely unacceptable.
"Queensland has a history of treatment of Aboriginal people that would match any history, anywhere in the world", Malezer said, "even South Africa.
"It's ludicrous if the native title legislation should give state governments the right to legislate on native title. It's ludicrous to think that after all we've been through, responsibility should now be handed back to the states to determine what rights exist under native title."
Under amendments being considered by the Howard government, "Any activity that constitutes a land use can be classified as a pastoral lease — even aqua-culture", Malezer explained. The states would be given the right to quarantine any land use from the native title, simply by classifying it as a pastoral use.
The result would be that "the government would be able to upgrade a pastoral lease to a tourist development at any time, and those holding native title will not have a right to negotiate", Malezer said.
The pressure to extinguish native title is strongest in Queensland, Malezer said, because "in Queensland no clear pastoral leases have been issued. Hundreds of forms of leases which are not clearly defined have been issued.
"No-one really knows exactly what rights have been granted by pastoral leases. We will not accept codification that grants the pastoralists greater rights than they have in existing law."