By Peter Boyle
The Keating government's draft legislation on land rights, released on September 2, quashes hopes that the government would strengthen the High Court's limited recognition of Aboriginal "native title". In fact, the effect will be to limit even further the possibility of court action by Aborigines to gain land.
A narrow interpretation of the High Court's June 1992 Mabo decision was never going to give justice to more than a few Aboriginal and Torres Strait Islander communities — those like the Murray Islanders, who could prove their continuous possession of their traditional lands after 205 years of brutal and systematic land theft. The Aboriginal and Torres Strait Islander Commission (ATSIC) estimated that 90% of Aboriginal people would not be able to establish native title on a strict interpretation of Mabo.
Therefore any real hope of justice rested on the federal government enacting national land rights legislation in response to the Mabo decision. The alternative was to try to extend the rights to native title in common law through a long and expensive series of test cases. Keating's bill fails to make good his public promises to deliver land rights, and will restrict further use of common law to obtain them.
The legislation was greeted by the Australian as a "welcome advance" and by the Financial Review as a "win" for the state governments that have been defending the land rights of mining companies, pastoralists and the operators of tourist resorts and restricting the rights of Aboriginal people.
All existing residential, commercial, pastoral, tourism, mining and fishing leases are to be validated under the legislation, and a "National Native Title Tribunal" — staffed by Federal Court judges, mediators and anthropologists — will have the power to determine whether native title exists, mediate claims, determine compensation and determine whether conflicting grants (such as mining leases and permits) should be made on native title land.
Tribunals may also be set up by state governments, but in all cases will only recognise a narrow definition of native title. In addition, state or federal governments may overrule tribunal decisions in the "state or national interest". With most state governments hostile to the very notion of native title, Aboriginal leaders fear that the state tribunals at best will be stacked with unsympathetic staff.
One of the objectives of the special tribunals to be set up will be to screen out claims that do not fit within a narrow interpretation of the Mabo decision. This was sold by Keating as a move to knock out "ambit" or "vexatious" claims — a reference to several well-publicised common law actions recently initiated by Aboriginal communities.
Most of these Mabo-style claims lodged with the courts are attempts to broaden or clarify the definition of surviving native title. The wide scope of some of them arises from the needs of mounting consistent legal arguments under common law doctrine. This is a feature of many legal claims.
The Mabo decision left several matters unclear. In legal theory, native title predates the law imposed by the conquering or colonising power, so what rights does native title confer? Does it include fishing and mineral rights, as courts in North America have concluded?
While all the judges in the case agreed that the colonising governments had the power to extinguish native title, one judge argued (with considerable legal plausibility) that such acts of extinguishment gave rise to a duty to compensate former native title holders. This argument is being tested in the Wik people's claim in north Queensland.
However, Keating's legislation could serve to limit the further development of common law native title rights through the courts because statutory law overrides common law — unless the High Court declares the legislation invalid.
Under Keating's draft legislation, native title holders will not have the right to veto mining on their land — all they will have is a right to be consulted. Even this right is restricted. Objections to a mining project must be lodged within 30 days, and then only four months will be allowed for native title holders to negotiate terms with the mining company. If still unresolved, the dispute will be settled by tribunal.
Without a right to veto or ownership of resources, title holders will have little bargaining power with powerful mining companies. Native title may be revived when a mining lease on the land runs out, but native title holders will have no power to stop extensions or renewals of mining leases. Further, during the term of a mining lease native title holders will not be able to exercise any rights to the land concerned.
Any native title that was extinguished between 1975 (when the Racial Discrimination Act was passed) and 1993 will still give rise to a right to some compensation. (Before that, state and federal governments had the legal right to discriminate racially and steal Aboriginal land without compensation, according to the High Court.) How this compensation is to be calculated remains unclear, but the federal government agrees to help states pay for it. Mining companies won't have to pay any part.
As native title holders are to be deprived of the right to a share in resource profits, any lucky native title holders are to be given the right to sell off or lease their land. But Aboriginal people haven't been demanding this right. On the contrary, it is a long-standing demand of the mining industry, which opposes the inalienable freehold title granted under the Northern Territory Aboriginal Land Rights Act.
Such a right simply frees large mining companies to try to buy out native title holders and manipulate the native title claim process. (The NT government is believed by Aboriginal land councils to be behind one common law land claim currently being considered by the Federal Court — its object is to invalidate the NT Aboriginal Land Rights Act!)
While all existing land grants (except for mining leases and pastoral leases which specifically recognise Aboriginal rights to the land) will be deemed to have extinguished native title, as a token gesture all future land grants will not do so.