How the Native Title Act fails

February 21, 1996

In the two years of its existence, the Native Title Tribunal has not been able to resolve a single case. Who is to blame? Kauser Khan-Rasool reports. Two years after the Native Title Act, NSW Aboriginal communities have found a new and unexpected opponent to several key claims at Wellington and Peak Hill in outback NSW — the Carr Labor government. The Wellington claim is being opposed by deputy premier Andrew Refshauge's Department of Aboriginal Affairs. Tony Macavoy, of the department, says, "The premier has issued directions that certain evidentiary levels have to be met before the government would consider settlement". At Wellington, the department claims, the evidence is not strong enough to establish native title. Sources at the department say that the directions from the premier were sent to the minister for land and water conservation, Kim Yeadon. Yeadon's office, however, denies having received any instructions. Yeadon is also the opposing party in a native title claim at Peak Hill. David Towney, spokesperson for the claimants belonging to the Wiradjuri tribe, says, "The Fahey government had a policy of opposing every native title claim. We had hoped, with Labor coming in, there would be a change in attitude. Till now we have been disappointed." The disappointment is shared by the claimants of the Wellington Common, who also belong to the Wiradjuri clan. Their claim for 180 hectares of crown land was lodged at the Native Title Tribunal in January 1995 by Rose Chown. Mission records dating back to 1832 mention the presence of the Wiradjuri tribe in the area. Records say that there were 27 Aboriginal family homes on the border of the common, along the Macquarie River, until the 1950s. By the '70s, there were only two tin shacks left. Glenda Bell, Rose Chown's mother, was one of the last to move. She said she did so only when the authorities threatened to take her grandchild away. Many of the claimants were born on the common, while some married while living there. Their birth and marriage certificates, giving addresses on the common, were submitted as proof of their claim. Anthropological and genealogical researches confirm the presence of the tribe in the area.


As is the usual procedure in the tribunal, mediation was arranged between the claimants and other parties with interest in the land. This included CRA, the Wellington council, the state government and residents whose land was close to the common. All parties, except the state government, agreed this month that the claim was genuine. The agreement could not be finalised, however, because of dissent from the state government. The Native Title Act does not give the tribunal the power to make decisions; it can only facilitate mediation. After nearly two years in mediation, the Wellington application is still unresolved. The outcome of this case is anxiously awaited, not only by Rose Chown and others, but also by the larger Aboriginal community. If this one is not established, what hope would there be for claimants who have less proof on hand? The general opinion amongst indigenous Australians is that the onus of proof required by the act is inordinately high. A native title applicant has to prove: * that their people held native title over the area; * that the applicant can trace their title to that group; and * that the applicants have maintained sufficient connection with the land to keep the title alive. No-one, to this day, except the Meriam people in the Mabo case, has been able to prove to the satisfaction of any court that native title continues to exist anywhere in the country. Justice Toohey in the Mabo ruling said, "The onus [of proof] rests with those claiming that traditional title does not exist". The Native Title Act, however, squarely places the onus of establishment of native title, as well as proof of its non-extinguishment, on the claimant. It is often hard to find proof of concepts like continuing connection with the land. Pro of non-extinguishment is even harder. Andrew Chalk, a lawyer who regularly represents Aboriginal land councils, says, "The rules of extinguishment embodied in the act are very artificial. In British Columbia in Canada, even the grant of freehold lease does not extinguish native title." About 40 kilometres from Wellington is the town of Peak Hill. The area is traditional Wiradjuri territory. Archaeological research confirms that there were Aboriginal settlements here 30,000 to 40,000 years ago. Gold was discovered in Peak Hill in 1889, and a stream of prospectors moved in. Mining activity began to die away in 1917, and the population of the town dwindled. The Wiradjuri people continued to live on what they called the "back hill" during the mining activities, in which some of the men were employed. In 1974, they were offered government housing on the outskirts of the town, and went readily, according to David Towney, because "it was exciting to exchange tin shacks for beautiful houses". They did not like moving away from a place they liked, but they did enjoy the new houses, he says.

Gold deposit

At about the same time in the 1970s, exploration licences were granted to Alkane Exploration NL, subsequently renewed in 1993. Soon after, the company discovered a large deposit of gold. The shire council gave a development licence in September 1993, and grant of the mining lease was imminent. In January 1994, the Native Title Act came into effect, and it became necessary to advertise the proposed lease. A claim was then lodged with the Native Title Tribunal by David Towney, acting for some Wiradjuri families of Peak Hill, who had lived on the land till 1974. According to the Wiradjuri people, the "back hill", which they were now claiming, has been constantly used and visited up until the present day. After moving away, they had constructed bower sheds from local vegetation and used them for camping and picnics. They still go there to hunt and cook traditional game and gather medicine. "The question" says Andrew Chalk, "is whether to recognise 100 years of occupation, or 1000". The claim went for mediation, but could not be settled. The mining company says the Aborigines were holding out for money. Project manager Geoff Meates says, "A mine is a centre of wealth. A lot of money is spent in finding it, and then these Aborigines get to negotiate a share of the produce." The mining company declined to give them a share of the produce, and the case was referred to the Federal Court in February 1995. David Towney was surprised to find that his opponent was the minister for land and water conservation. The company was only second respondent; according to Meates, it didn't see why it should spend money when the government was already doing the job. The case is scheduled to come up for its next hearing early next year. Chris Searle, legal officer at the Department of Land and Water Conservation, says, "The onus of proof rests with the claimant. We believe that, according to Tyndale's Aboriginal Tribes of Australia, the Wiradjuri people did not extend to Peak Hill." The official comment from Yeadon's office is that, because of the history of pastoral and mining leases in the area, native title has been extinguished.

State act

A substantial part of the claimed area in Peak Hill has also been recently granted to the Wiradjuri community through the NSW Aboriginal Land Rights Act of 1983. Section 45, part 11 of that act, however, gives the crown ownership and control of any gold, silver, coal or petroleum found on such land. Even if the Wiradjuri people gain ownership of the land in Peak Hill, they would be neither able to veto the mining, nor entitled to royalties. Had David Towney's claim been established, however, it would have pre-existed any other land title or lease. Towney comments, "It [the Native Title Act] is protecting farmers and miners all over again". "The act was brought in because there was a potential since the 1975 Racial Discrimination Act that native title claims could be brought in. Section 7 of the act specifically overrides the Racial Discrimination Act", says Andrew Chalk. Another lawyer commented, "The Mabo judgment gave indigenous people the card; the Native Title Act has taken it away". "There was uncertainty created in the wake of the Mabo decision as to where native title could exist", says Chalk. "The Aboriginal people did not ask for the act; the mining companies did. By the provisions of the act, all existing mining leases were validated. It also became possible to grant mining leases expeditiously." There is also ongoing pressure from state governments to introduce amendments to speed up proceedings and provide more certainty to miners and farmers. One of the proposed amendments is to have a threshold test at the time of registration of claims. This would be designed to reject claims that cannot provide prima facie evidence, weeding out even more applications right at the start.