Native title: myths and realities


By Jennifer Thompson Picture

On September 4, the day the Coalition's Wik bill went before parliament, John Howard told the ABC's 7.30 Report that obstruction of the bill would mean Aboriginal people could have a "veto over the further development of 78% of the land mass of Australia". While untrue, Howard's claim is characteristic of the myths that the rural and mining lobbies have promoted in their campaign against native title.

As Kimberley Land Council executive director Peter Yu commented, the prime minister is "prepared to use misleading and incorrect information to scare the wider community into supporting an utterly unjust position".

Misinformation is being peddled by the myth makers in government, the National Farmers Federation and representatives of the mining industry — the same people who stand to make large gains if the legislation is passed.

Question: Myth: Pastoral leases are threatened by last year's High Court Wik decision.

The Wik decision did not take any rights from anyone. It asserted that the rights of pastoralists to graze animals, fence their land, build dams and erect homes could exist side by side — coexist — with native title. The High Court also said that where any clash of rights arises, the pastoralists' rights prevail.

Holders of native title on pastoral leases would maintain access to the land for specific traditional purposes such as fishing, camping, hunting and ceremonies.

Through the right to negotiate regime in the 1993 Native Title Act — a recognition of the special relationship and obligations Aboriginal people have with their traditional land — Aboriginal people are allowed a say in future developments, including mining.

This right is severely curtailed by the government's amendments, which also restrict opportunities for Aborigines to benefit from economic developments.

The government is also proposing to expand the activities pastoralists are allowed on pastoral leases to include cultivation, fishing, forestry and horticulture.

The bill says that any native title rights inconsistent with these activities will be permanently extinguished.

Question: Myth: Coexistence on pastoral leases doesn't work.

This assertion by the National Farmers Federation is belied by the real history. Pastoral leases have always remained crown land (ultimately controlled by the government).

Such leases have been used by people other than the pastoralist for mining, timber harvesting and fishing. Aborigines are legally allowed to access pastoral leases in Western Australia, South Australia and the Northern Territory for hunting, camping, food gathering, water collecting and traditional ceremonies. There are no pastoral leases in Victoria and Tasmania.

For many years, pastoralists were happy to accommodate the needs of Aborigines. The pastoral industry was built in large part by the labour of Aboriginal stock workers, for which they were "paid" mainly in food and tobacco rations.

Such work allowed many Aboriginal people to maintain a connection with their traditional land. But in 1967, when pastoralists were legally required to pay Aborigines award wages, many sacked their Aboriginal stock workers and drove them from the land.

The scaremongering campaign has also undermined the spirit of coexistence where it existed.

Question: Myth: The 10-point plan, which is incorporated into the government's bill, is a fair attempt to balance the interests of Aboriginal traditional owners and pastoralists and mining companies and isn't about simply extinguishing native title.

The bill sets an impossibly high threshold test for registration of native title claims; disallows most oral evidence; requires those wanting access to their lands to have a current physical connection; and sets a six year cut-off for the operation of the Native Title Tribunal, forcing those with later claims to go through the Federal Court, which will be much more expensive and time-consuming.

Native title will be extinguished forever on land used for public works, land grants from one government to another or to a statutory authority and land subject to community purpose leases — even where there is minimal or no conflict between the public and native title uses.

Some state governments (particularly Queensland) have chosen to ignore the 1993 Native Title Act. They approved projects, especially mining, from 1994 to 1996 without concern for native title. The bill validates these unlawful acts retrospectively to extinguish native title.

The bill also extinguishes native title by allowing state and territory governments to compulsorily acquire native title rights and turn them into freehold or other exclusive tenures.

The right to negotiate — established as part of the compromise between the Labor Party and Aboriginal leaders that resulted the 1993 act — will be severely curtailed.

This right is completely abolished for "small scale" and "exploratory" mining activity, private infrastructure development, like the proposed new railway to Darwin, and any development within the boundaries of a city or town.

Ministers will also be able to exclude indigenous people from negotiating over the use of traditional lands by bypassing or short-cutting the negotiations, or by limiting matters which can be negotiated.

Native title holders will lose the right to negotiate with mining companies wanting to develop projects on pastoral leases.

Question: Myth: Pastoralists are asking for no more than they had before the Wik decision.

The rural lobby insists that "certainty" means exclusive possession of pastoral leases now and in any future developments in tourism, mining and agriculture. This would greatly extend pastoral leaseholders' current rights and is an attempt to upgrade tenure to freehold or other forms of exclusive tenure which extinguish native title.

The beneficiaries would include some of Australia's and the world's richest people — and up to 29 members of parliament.

[Compiled from Australians for Native Title and Reconciliation fact sheets; Native Title Act Amendment Bill: the "Final Act of Dispossession" by the Foundation for Aboriginal and Islander Research Action; and the ACTU's 1997 Congress Background Paper on Native Title. To obtain copies of ANTaR's fact sheets, write to PO Box 154, Balmain 2041, or phone (02) 9810 1382.]