By Pip Hinman
Not since Mabo has there been such a campaign against native title. Recently, the West Australian devoted four pages to a supposed native title claim on an elderly couple's home in Boulder. According to Jesuit priest and lawyer Frank Brennan, the federal Coalition's discussion paper on changes to the Native Title Act is all about limiting Aborigines' rights to negotiate over land claims.
Brennan, who has written extensively on Aboriginal social justice and land rights issues (Sharing the Country , One Land One Nation: Mabo — towards 2001 ), told Green Left Weekly that the Howard government looks set to appease the strident demands of pastoralists, miners and state governments.
This is despite the fact that in the wake of the 1992 Mabo decision, "there was an understanding by all parties that native title was extinguished by pastoral leases". This presumption is in the preamble of the act. "This is why the whole issue, has, in part, been a furphy."
The main concession Aborigines won from the 1993 Native Title Act is that it did not legislate extinguishment of native title on pastoral leases. Two other concessions were a land acquisition fund, particularly for pastoral leases, and the ability, once they had purchased back a pastoral lease, to revive native title.
The hysteria about the "unworkability" of native title is largely driven by the mining lobby. "The 1993 deal on native title was done at midnight between Keating, the National Parks Federation and Aborigines. The miners were at home in bed — for which they have never forgiven anyone", Brennan said.
Then, pastoralists argued that while it seemed rather academic whether or not native title survives on pastoral leases, they wanted to be assured that their leases would remain valid, and that when the lease ended after 99 years it could be renewed without having to negotiate with Aborigines. This was agreed to by the Keating government.
Pastoral leases, some of which cover tens of thousands of hectares, are given to farmers from crown land. While the pastoralist doesn't own the land, Brennan said that increasingly, especially in Queensland under Joh Bjelke-Petersen's National Party governments, all sorts of provisions allowed pastoralists to get freehold title.
"A mentality developed among pastoralists that they really were the owners of the land, and that therefore it was absolutely unthinkable that anyone else, including Aborigines, could have any rights of access.
"The question now for pastoralists is, if native title does exist in any form on a pastoral lease — like in Western Australia, the Northern Territory or South Australia, where pastoral leases still contain clauses which allow Aborigines onto the land for hunting or gathering — whether this means that if the pastoralist wants to convert to, say, a tourist development, he/she would be required to negotiate with the native title holders."
State governments and pastoralists are arguing that the easiest way to deal with this question is to legislate to make all pastoral leases automatically extinguish native title. However, John Howard has reservations about doing this — in part because it would breach the Racial Discrimination Act. Instead the Liberals' discussion paper argues for leaving the extinguishment question to the High Court.
However, Brennan said that the government seems prepared to legislate to guarantee that pastoralists can do anything they like with their lease without having to negotiate with native title holders. "The paper says to the pastoralists: 'You're fixed. You never have to negotiate with Aborigines.'"
The legal position flowing from Mabo is that the crown determines whether or not native title is wiped out by pastoral leases. It is not up to the individual lease holder.
"For a pastoral lease in WA, where Aborigines have had continued access to the land for hunting and foraging, the question becomes, is native title extinguished by the act of the pastoralist enclosing the land, or building a building, or was it extinguished when the crown gave the pastoralist the grant? The general legal view on what Mabo says is that native title has been extinguished on all pastoral leases."
Brennan said that this is part of the reason that WA backbencher Wilson Tuckey and Queensland National Party Senator Bill O'Chee are so agitated. According to them, parliament should stop messing around and legislate — regardless of the legal problems associated with overriding the Racial Discrimination Act.
However, Brennan believes that "there is a substantive difference between a court saying that native title rights were extinguished when pastoralists were granted leases a century ago, and a parliament saying that while Aborigines may have property rights, they will have to be extinguished so that we can give certainty to others. That would be a very objectionable way of treating Aborigines."
Little has been said about agreements between pastoralists and native title holders such as the Cape York Agreement. However, as Brennan recalled, this agreement was negotiated without the miners, who object to "any cosy arrangements" which may impact on their ability to gain access to pastoral leases without having to negotiate with Aborigines.
Brennan said that the mining lobby is the real driving force behind the planned changes to the act.
"If native title is extinguished on pastoral leases and a mining company wants access to a whitefella's pastoral lease, all it has to do is pay for any disturbance. If a mineral deposit is found on the lease, the mining company will just buy it out."
Given the current difficulties faced by pastoralists, this can be a welcome opportunity. "If the property is worth $7 million, the mining company offers $9 million and the pastoralist moves on, allowing the mining company to do a deal with the government on the remaining lease."
But if native title is found to have survived, the mining company objects to being told it has to negotiate with the native title holders. "This is unacceptable to the mining companies. They want access to pastoral leases with an absolutely firm guarantee that they never have to deal with Aborigines", Brennan said.
Much hinges on the outcome of the Wik case, due to be heard by the High Court on June 11. There, Aboriginal native title holders in Cape York have been trying to work out a satisfactory deal with Comalco. Queensland pastoral leases do not contain a clause guaranteeing continued Aboriginal access to land.
Brennan believes that state governments may try to intervene in the Wik case to ask the court to determine whether different sorts of pastoral leases extinguish native title. However, he thinks it likely that the High Court will rule only on the Queensland case and leave open the question of whether pastoral leases extinguish native title in WA, the NT or SA. This is what the mining industry lobby and their parliamentary spokespeople fear.
Right to negotiate
The government's discussion paper contains a proposal which Brennan believes will be totally unworkable: that native title claimants will not have any right to negotiate at any stage.
"If a company starts a mining operation without having negotiated with, or got the consent from, the common law native title holders, they can still stop the mining development with a court injunction.
"The other question is whether giving Aborigines the right to negotiate only at the development stage, and not at the exploration stage, is a just outcome.
"The other day Richard Court issued a document which read in part: 'Excluding exploration from the right to negotiate will be welcomed by some in the mining industry, but only creates greater uncertainty at the mining stage, and many companies will not spend large amounts on exploration if there is doubt about their ability to develop the resources that may be found'.
"In other words, Court and Co. want to get rid of the right to negotiate altogether. This will leave native title holders with their common law rights, under Mabo, and the protection of the Racial Discrimination Act. And yet the right to negotiate was said to be the corner piece of the concessions made to Aborigines in 1993."
The discussion paper also contains proposals to restructure the Native Title Tribunal. This had to be done in the wake of the High Court's 1995 Brandy decision which stated that it is unconstitutional for the tribunal to determine conflicting rights claims because this role is for the courts.
Also, in the wake of the Waanyi people's case against Century Zinc, the so-called threshold test is being revised. In this case, Aboriginal people argued that they shouldn't have to prove their native title status in the wake of Mabo, but that others should try to disprove it. At the time, the government agreed to a minimal threshold test before a claim was lodged, which then automatically gave the claimants the right to engage in the negotiation regime.
The question that arose with Waanyi was whether the claim could be put on the books before the tribunal had determined whether a particular pastoral lease extinguished native title. Justice French, head of the tribunal, decided that in the Waanyi case, native title was extinguished and therefore the claim could not be lodged.
The High Court said that this was not for a tribunal to decide. It ruled that the negotiation process can begin up until a determination on title status is made, and that the tribunal could not be the final arbiter on this.
Brennan said that many Aboriginal groups have lodged applications which have immediately opened up the right to negotiate. The discussion paper proposes to re-jig the relationship between the tribunal and the courts, with a much stricter threshold test before a claim can be lodged. To determine whether this would discriminate against Aboriginal groups or not, Brennan said he would first have to scrutinise the fine print.
In 1977 the Fraser government passed the first piece of land rights legislation — the Northern Territory Land Rights Act — after the findings of the Woodward Royal Commission set up by the previous Whitlam government. In his report, Justice Woodward said he was convinced that to deny Aborigines the right of veto over development was to deny the reality of their land rights.
According to Brennan, the standard Aboriginal position has always been: "If you whitefellas respect our culture and our yearning for self-determination, the least you will do is give us the power to veto development on our land". Of course, this also gives Aboriginal groups some economic bargaining power. The mining companies have always argued that such a veto doesn't work, that it restricts development, and every few years they have tried to get the NT Land Rights Act amended.
Following Mabo, the mining industry launched a campaign of economic blackmail arguing that because of doubts about the validity of titles, it could not attract foreign investment to Australia. Comalco led the charge, saying it wanted to engage in a major expansion — worth some $1.6 billion — and without absolute title security it wouldn't be able to raise this amount. This is the origin of the Wik dispute.
In 1993 Keating called a meeting of mining companies and Aboriginal groups to thrash out a deal which would give the miners certainty over title. "Because Aborigines knew that in the wake of Mabo they had native title, they did not need a registration system and they didn't need to validate titles in the wake of the Racial Discrimination Act, they said, 'For the first time we're in a position where we have something to deal with. We're at the table with a few trump cards.'"
However, Aborigines' attempts to ensure that they had veto rights over development on native title land were quashed by the Keating government; they were given only the right to negotiate. Aboriginal groups then asked the federal government to oversee the negotiation regime. However, Keating refused, saying that if state governments set up a procedure which complied with national guidelines, they could handle it.
"The eventual deal was that Aborigines would have the right to negotiate both at the exploration and development phase, but that the Aboriginal negotiated process could be overridden by an independent arbitral body. Furthermore, even if the independent arbitral body agreed with the Aboriginal objections, the state minister — presumably for mines — would have the power to override the Aboriginal objections in the state's interests. This has been on the books, along with the Native Title Act, since 1994."
Following the federal election, the mining lobby is hoping for an even better deal. "They say the right to negotiate regime, even with the state override, is unworkable. The federal government agrees. And yet this is at a time when there still has not been one final determination about native title of any area of land across Australia."
The big question now, according to Brennan, is why would Aborigines want to negotiate? "Back in 1993 the moderate Aboriginal leadership convinced the more radical Aboriginal leaders that there was a point in dealing with the whitefellas; that there would be some trade-offs for some gains, like the right to negotiate, the land acquisition fund and a social justice package.
"Now with the new government, the land acquisition fund will be subject to budgetary proposals and $8 billion shortfalls, the social justice package will never be heard of again and the right to negotiate is up for grabs."