Since the December 23 High Court decision that native title could co-exist with pastoral leases — the "Wik decision" — state and territory leaders, big pastoralists and some mining corporations have been calling for hasty extinguishment of native title rights, regardless of the Racial Discrimination Act.
Green Left Weekly's JENNIFER THOMPSON spoke to GARTH NETTHEIM, visiting professor at the University of NSW's law school, about the proposed changes to the Native Title Act and the implications for the Racial Discrimination Act.
Over the last couple of weeks the state premiers have been putting forward a plan for a sunset clause on native title claims. The proposed cut-off date is January 1, 2000. They have also suggested replacing native title rights with limited "access rights" to pastoral lease land.
The sunset clause proposal has been firmly rejected by ATSIC native title commissioner, Geoff Clark. Indigenous social justice commissioner Mick Dodson has said native title is about human rights and not comparable to a personal injury compensation claim affected by time limits.
Singling out indigenous Australians by limiting their property rights while not equally limiting the property rights of non-indigenous Australians, Nettheim said, would be "a clear violation of section 10 of the Racial Discrimination Act (RDA)".
Nettheim explained that the Minerals Council of Australia's call for the Prime Minister to retrospectively validate all the post-1994 mining leases — possibly invalid following the Wik decision — came about "because some governments, such as Queensland's, have chosen simply to ignore the possibility that the High Court might hold the co-existing native title rights in relation to pastoral lease lands." A couple of years ago, he noted, Dodson warned that that course of action was extraordinarily risky. The Queensland government nevertheless "blithely issued something like 800 mining titles and some other governments did the same".
Commenting on the possible agreement between native title claimants and mining company CRA-RTZ over the Century Zinc mine in north-west Queensland, Nettheim believes that any agreement reached through mediation would demonstrate that the "right to negotiate" procedures under the Native Title Act (NTA) do not mean that mining doesn't go ahead on native title land.
Howard has pointedly not ruled out amendments to the RDA to facilitate amendments to the current native title arrangements.
The RDA was passed by federal parliament in 1975, the same year that Australia ratified the International Convention on the Elimination of All Forms of Racial Discrimination. Its purpose, Nettheim said, was to provide legislative implementation of that convention within Australia, "which mostly it did".
"The RDA has been very important to protect land rights of indigenous Australians against state and territory legislation", says Nettheim. For example, the RDA was critically important in the Mabo litigation: "In 1985, the Queensland government passed an act to kill off the Mabo litigation by saying retrospectively that native title on the Murray Islands had been extinguished long ago." But in 1988, in Mabo number one, the High Court ruled the Queensland act invalid and in contradiction with the RDA. "Without the RDA as a federal safety net against that legislation, we would never have got to the Mabo decision", Nettheim said.
Western Australia has also tried to head off the NTA by passing its own legislation to wipe out native title and substitute "statutory rights of access". However, in 1995 the High Court ruled that Liberal Premier Richard Court's legislation was invalid for its inconsistency with the RDA and the NTA.
Because the RDA is a Commonwealth act, Nettheim explained, it can be overridden by the Commonwealth parliament simply displacing, or acting somehow inconsistently with the act. "There is no constitutional bar to overriding the act unless the High Court were to find an implied right of equality in the constitution". The High Court is being asked to do just that in the current "stolen generations" case being brought by Aboriginal people.
On the other hand, says Nettheim, if any erosion of indigenous people's property rights proceeds, even if it is inconsistent with the RDA, it is likely to be under a law regarding the acquisition of property and that would involve a constitutional requirement that there be just terms of compensation. "That costs a lot and working out how much it costs could take some time", he said.
There would be other types of costs too, Nettheim points out. "The Senate's blockage of the special legislation for Hindmarsh Island two weeks ago indicates that the Senate would not necessarily embrace legislation to weaken the RDA." And if it did, he says, it would attract adverse attention internationally: "I would be very surprised if indigenous Australians did not file communications with the committee established under the convention [on the elimination of racism] and also at the next meeting of the UN working group on indigenous populations."
While such international forums can't override or invalidate a Commonwealth law, "they can put political pressure on Australia, make Australia look bad". Nettheim believes that the government will want to avoid such publicity in the lead-up to the centenary of Australian federation and the Olympic games.
Northern Territory University Aboriginal Studies chairperson, Marcia Langton, argues that Australia traded on its human rights record to win the right to host the 2000 Olympics. It could therefore expect an international backlash if it attempted to extinguish native title as a response to the Wik case. Her warning was echoed by former ATSIC head, Lois O'Donoghue: "We will be back in the streets ... marching, demonstrating and ... certainly the games will be a platform".
The pressure will be on in Australia too, says Nettheim. "Many sectors of the community would be nervous about displacing the operation of the RDA. If this is done in relation to one group it could be done to others."