By Jennifer Thompson
John Howard has presented his "10-point plan" on native title as a compromise between the demands of the powerful mining and pastoral interests and their representatives, who are demanding that native title be extinguished, and Aborigines, who insist that the recognition of native title arising from November's High Court Wik finding, be protected.
A closer examination of the plan reveals that, far from being a compromise, it will wipe out any gains for Aboriginal people made possible by the 1991 Mabo decision.
Kimberley Land Council executive director Peter Yu, writing in the April 1 Australian, said the National Party and the National Farmers Federation's refusal to "deal constructively with coexistence" was not just about pastoralists trying to extend their rights, but "a whole new round of Aboriginal dispossession".
Sydney Morning Herald commentator, Michael Millett, agreed. Howard's 10-point plan would "make it difficult, if not impossible, for native title holders to exercise any rights on pastoral leases". Yu said on April 23 that Howard is using the response to the Wik decision to roll back native title rights first recognised in the 1991 ruling.
The position paper issued by the National Indigenous Working Group (NIWG) on native title lists indigenous peoples' concerns about Howard's plan, especially that it makes it too difficult to prove a claim. It says: "[There should be] no de facto extinguishment of native title by an unreasonable threshold test for the acceptance of claims; a minimisation of native title rights through codification; 'physical connection' tests; imposition of sunset clauses on claims; or precluding towns, cities and waterways from claims or the right to negotiate process".
Howard's plan
Howard's plan includes proposals to validate all leases issued since 1994 (after Keating's Native Title Act wiped out native title on all exclusive tenure lease and freeholdings granted up until 1994). According to the NIWG, "this would reward flagrant breaches of the law by some governments", referring to the hundreds of mining leases granted mainly by the WA and Queensland governments without regard to possible native title rights.
Validation of such grants, NIWG said, should be through the "Future Act" regime of the Native Title Act — which requires those proposing development on land where native title may survive to negotiate with traditional owners — or through regional agreements.
Other provisions in Howard's plan include:
- <~> Where claimants can demonstrate that they have a continued physical connection to pastoral land, access will be legislatively confirmed pending a determination on the claim. This will only affect pastoral leases in Queensland and NSW where Aboriginal access to land for traditional use is not provided for in laws governing pastoral leases. Both states have opposed this. The requirement that Aborigines demonstrate a physical relationship is already too difficult to prove, wrote Father Frank Brennan in the April 30 Sydney Morning Herald, "when 30 years ago the pastoralists kicked them off once ordered to pay award wages".
- <~> A sunset clause on new native title claims. As Brennan points out, this overlooks the reality that common law native title rights, conferred by the Mabo decision, already exist regardless of when claims are lodged. A sunset clause is just extinguishment with a time delay, he says.
- <~> The subordination of native title rights to pastoralists rights would be extended to a much broader range of activities related to or incidental to "primary production" as defined in the Income Tax Assessment Act, including tourism. This change virtually allows pastoralists the exclusive tenure, equivalent to freehold, they have been demanding.
- <~> Native title claimants' right to negotiate over development, including mining, building, government infrastructure and acquisition of land in towns and cities would be removed or severely curtailed by impossibly high threshold tests for registering native title claims. For both business and Aboriginal people, this is the most drastic of Howard's proposals.
Yu said Howard has made it clear that "he is not willing to negotiate on the right to negotiate, a right which is fundamental to the maintenance of Aboriginal rights to fully protect and enjoy our native title".
Tim Treadgold, writing in the May 5 Business Review Weekly also notes the importance of the right to negotiate. He lists the desires of big business interests: certainty of title; the ability to move freely across the land; and the ability to develop projects, trade in land and make loans to people who want to use their land as security. "The last thing business wants is to become bogged down in an endless period of negotiations", Treadgold said, explaining big business' strong support for Howard's plan.
This attempt to roll back native title rights is being accompanied by a campaign of racist theories meant to "prove" Aboriginal inferiority to white Europeans — as was the original dispossession of the Aboriginal people by British colonisers after 1788.
Even conservative commentator Gerard Henderson described Pauline Hanson's undocumented claims that Aborigines practised cannibalism as "part of an attempt to challenge the legitimacy of any claim by indigenous Australians to native title". In 1993, during discussions about the Keating government's native title bill, which arose from the Mabo case, Northern Territory chief minister Marshall Perron and Western Mining director Hugh Morgan made similar claims of Aboriginal inferiority.
Limited rights
In the Mabo case, the Australian High Court recognised for the first time that Australia's original inhabitants were entitled to some form of "native title" to land following European colonisation. However, the court found that Aboriginal people's title survived only when:
- <~> claimants could demonstrate traditional rights to the land, and occupation according to traditional law;
- <~> they had not moved, or been forced off the land; and
- <~> the crown had not extinguished native title.
Before Mabo, the accepted common law position was based on the legal fiction that Australia was terra nullius — an uninhabited land — colonised by the British in 1788. The High Court's majority position rejected terra nullius as justification for acts which were the "darkest aspect of the history of this nation".
That "darkest aspect" was the dispossession of the Aboriginal people of their land, and an unrelenting attempt to wipe them out. Colonists set out to make the myth of an empty land a reality. Disease, massacre, and poisonings exacted a horrifying toll. The "justification" for this attempted genocide was that Aborigines were a "dying race" and that the "superior" white race would soon prevail.
Once the white settlers were firmly in control of the land, bullets and poisoned flour were put aside in favour of systematic destruction of the Aboriginal family and community. Under the policy of assimilation, 100,000 Aboriginal children were stolen from their families — dubbed "protection" by the colonial authorities.
Having stolen the land, colonists put the dispossessed Aborigines to work. Across the continent massive pastoral operations flourished with Aborigines forced to work on what was once their land as virtual slaves, creating untold wealth for station owners.
When station owners were finally made by law to pay wages to their Aboriginal workers in the late 1960s — after Aborigines were granted citizenship — they were sacked en masse and driven off the land.
Following the limited recognition of land rights in the 1970s and '80s, the government, big pastoralist and mining corporations' current efforts to abolish native title, or at least render it meaningless, are nothing less than an attempt by the Australian ruling class to reassert the idea of terra nullius.