Greens issue urgent Wik warning
By Jennifer Thompson
The Greens began distributing a national information alert on March 25 warning that, despite widespread community opposition, the Senate is in danger of passing the Wik legislation. The next day, they released new legal advice that one of the Senate's amendments to the legislation, aimed at preventing racial discrimination, will be largely ineffective.
It's important to understand that the Wik bill does not benefit indigenous Australians, said WA Greens Senator Dee Margetts. Australian Greens Senator Bob Brown warned: "Senate power brokers, the Coalition, Labor and Senator Harradine are edging towards a resolution that would sell out core indigenous interests in a search for a politically expedient way of getting the issue off their backs."
In their Rights Versus Greed: Update on Wik, the Greens senators said the essence of the government's 10-point plan was the extinguishment of the rights of Aboriginal and Torres Strait Islanders. They emphasised that the bill should be amended to ensure indigenous rights are protected.
The Wik bill should be fully consistent with the Racial Discrimination Act (RDA), which outlaws discrimination on the basis of race and protects the common law rights of indigenous Australians, they said.
Last year the Greens, Democrats, ALP and Harradine supported an amendment to the Native Title Act stating that the NTA "is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975".
Legal advice received by Margetts on March 26 from Professor Tony Blackshield, however, confirmed that the RDA amendment would not protect indigenous interests. The Senate's amendment, she was advised, would instruct the courts only that, "in case of an ambiguity ... an interpretation should be chosen which would be more consonant with the protection extended by the RDA" and not act as a safety net against clearly discriminatory aspects of the government's legislation.
Instead, said Blackshield, the amendment that had been proposed by Margetts — to add a new section explicitly giving the RDA primacy over the Wik legislation — "would provide the clearest possible indication that the provisions [of the Wik bill] were not intended to prevail over the Racial Discrimination Act".
The Wik bill, say the Greens, would enable state governments to give pastoralists new rights over land, including for clearing and cultivation, broad-scale cotton growing and other cropping, logging and forestry, construction of dams, weirs and canals, extraction of sand and gravel, and tourism developments. State governments would also have unrestricted power to determine rights to rivers and watercourses. Native title holders would have no right to negotiate over such developments.
In last year's vote on the bill, the Greens and Democrats supported the right to negotiate, but Harradine opposed it, as did the ALP, except where the developments are part of a major regional development based on a large dam or irrigation system.
The bill would also remove the right to negotiate at the exploration stage and keep only a limited right to negotiate on mining; this does not extend to pastoral leases or intertidal zones, for example. The Greens, Democrats, ALP and Harradine last year supported the right to negotiate on exploration and mining, including on pastoral leaves.
Native title claimants must qualify for the Register of Native Title Claims in order to access the right to negotiate. The new tests for the register are onerous and unfair, especially because they restrict claimants to those with a physical connection with the land, regardless of how they may have been forced off or locked out of their traditional land. Spiritual connections or maintenance of laws and customs are not recognised in determining native title.
The Greens and Democrats both unequivocally supported spiritual connection as part of the threshold test, but the ALP and Harradine supported a more restricted version of "spiritual connection".
The Greens are urging supporters of native title to lobby Senators Mal Colston and Harradine, and the ALP, to ensure that the Wik bill meets these key requirements, or reject it.