Wik and the politics of compromise

April 8, 1998


Wik and the politics of compromise

By Jennifer Thompson

Secretive negotiations between the Coalition government, Labor opposition and independent Senator Brian Harradine have been taking place over the passage of the government's Wik bill.

Whether the bill is passed or Senate amendments to the bill are rejected by the government, tremendous damage has already been done to indigenous rights in Australia, argues Greens Senator Bob Brown.

In their March 25 "Wik warning", Brown and WA Greens Senator Dee Margetts point out that the greatest misunderstanding is the belief that Senate amendments to the government's Native Title Amendment Bill achieve something for Aboriginal and Torres Strait Islander people. In fact, all the Senate amendments do is slightly lessen a tremendous loss of indigenous rights.

The bill grew out of government, pastoral and mining industry opposition to the December 23, 1996, High Court ruling that native title is not necessarily extinguished by the granting of a pastoral lease. The ruling extended the area upon which mining companies had to negotiate with native title claimants.

When Howard's 10-point scam was unveiled in the form of the Wik bill, it became clear how much Aborigines would lose. Of the 10 points, only one, on facilitating voluntary agreements, did not curtail existing or potential rights of Aboriginal people.

In December 1997, Harradine, and to a lesser extent the Labor Party, agreed with the Coalition government in allowing around 80% of the bill to pass the Senate. This included validation of tens of thousands of mining tenements issued by state governments without regard for native title; and explicit extinguishment of native title on thousands of non-freehold leases where it may have existed.

Racist bill

That the bill is racist is indicated by advice from the Australian Law Reform Commission and former Liberal Aboriginal affairs minister Ian Viner QC, whose March 26 Sydney Morning Herald article pointed out that the bill "has the single purpose of reducing the legal rights of a specific race of people".

The government strongly opposes making its bill subject to the Racial Discrimination Act (1975) — one of the "sticking points" in the compromise talks. Specific provisions that would be affected by prohibiting racial discrimination include the option for state governments to upgrade pastoral leases to freehold, thereby wiping out native title.

The Senate amendments last year would not stop the law being used in a racially discriminatory way. The government opposes a more effective Greens amendment outlawing racial discrimination, despite agreeing to include such a clause when the Social Security Act was amended last year. Labor wants the validation of the illegally granted mining leases exempted from the provision.

For indigenous groups to gain the right to negotiate, they must first pass a registration test. The government plans to drastically raise the threshold for satisfying this test, in particular by requiring a physical connection to the land, regardless of how claimants may have been forced off.

Partial agreement from the ALP and Harradine in December meant significantly increasing the threshold test — including the exclusion of overlapping claims — and automatically reassessing all native title claims made since June 1996, and allowing state governments to have any claim ever made reassessed, using the increased threshold test.

Right to negotiate

The Senate debate is not about preserving the indigenous right to negotiate, Brown points out, but only the right to negotiate on mining. "Labor, like the Coalition, has already sold out on the indigenous people's right to negotiate over most 'upgrade' uses of the land and seas."

Last December's bill, as amended by the Senate, included:

  • allowing the upgrade of pastoral leases by state governments to "full primary production" production and therefore de facto extinguishment of native title;

The massive dams and cotton irrigation scheme proposed for the Fitzroy River in WA's Kimberley region is an example of how the government could destroy places of immense cultural and natural value to Aboriginal communities, said Brown.

  • allowing acts which involve the management or regulation of water, or in offshore places, to displace native title rights;

  • allowing activities on reservations (like national parks) to remove native title rights;

  • approving gold, tin and opal mining;

  • excluding the right to negotiate in Australia's enormous intertidal zone.

Aboriginal bodies

The Senate voted to undermine further the position of Aboriginal organisations, by:

  • establishment of Indigenous Land Use Agreements without the proper scrutiny and safeguards proposed by the National Indigenous Working Group. The NIWG believes that ILUAs should be negotiated through better resourced native title Aboriginal regional representative bodies.

This would facilitate the grouping of multiple and overlapping claims, but the government is opposed to steps which might strengthen Aboriginal communities' organisation and unity.

  • forcing every Aboriginal representative body to go through a re-registration and adherence to accountability procedures stricter than for any government department.

The Senate voted to make it harder to have native title claims accepted by:

  • ensuring strict rules of evidence in Federal Court proceedings and striking out claims which do not adhere to onerous and expensive evidence requirements;

  • diminishing the independence of the president of the National Native Title Tribunal.

All the restrictions passed by the Senate weren't good enough for the government, and the political campaign for the bill's passage was intensified.

Pressure from business for a "compromise" was reflected in the Australian's April 2 editorial, which asked whether it would be better for Aboriginal groups to try for last-minute changes to the bill or to risk all on a Labor election victory.

Opponents of the bill, it said, must confront the unpalatable prospect that the bill's rejection would produce a worse result, if the government uses that as a double dissolution trigger and has the unamended bill returned to a joint sitting of the newly elected houses.

A Labor victory, however, would hardly be a guarantee of anything, as Bob Brown has pointed out, because the ALP agrees with most of the bill. The only reasonable option for native title supporters is to demand complete rejection of the racist bill.

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