What's at stake in the Wik debate?

April 9, 1997

Since the December 23 High Court decision that native title could co-exist with pastoral leases — the ik case — state, territory and National Party leaders and the National Farmers Federation (NFF) have demanded that native title rights be extinguished on pastoral leases. Prior to the ik finding it had been widely assumed that pastoral leases extinguished native title.

The racist campaign against native title rights has been stepped up over recent weeks with television and print media advertisements inflaming racial stereotypes and spreading misinformation about ik. Green Left Weekly's JENNIFER THOMPSON spoke to Jesuit priest and lawyer FATHER FRANK BRENNAN about the federal government's push to wind back native title rights.

Some of the arguments for the extinguishment of native title by people including Queensland National Party MP Bill O'Chee and the NFF have relied on inaccurate interpretations of the High Court's Wik finding. Writing in the March 27 Financial Review O'Chee claimed that the decision meant graziers would have to pay compensation to native title claimants every time they wanted to "erect a fence, irrigate a paddock or even muster his [sic] stock", and that Aborigines could now "demand exclusive ownership of land when a [pastoral] lease expires".

These are outright lies. The High Court found that where there is a conflict in the exercise of pastoral lease holders' and native title rights, the latter were subordinate. But the lies have been spread widely due, in part, to the financial clout of the NFF which controls the Australian Farmers Fighting Fund reportedly worth between $10-17 million. In the past the fund, which represents pastoral leaseholders such as Hugh McLachlan (4.7 million hectares), Janet Holmes a Court (5.6 million hectares) and the Sultan of Brunei (0.9 million hectares) among others, has campaigned against unionism, including in the Mudginberri meatworkers' dispute and the establishment of the Aboriginal and Torres Strait Islander Commission.

O'Chee and others' arguments about "the need for certainty" have created the perception that pastoral leases — over which they want exclusive control — are the private property of the lease holders. The suggestion that pastoral leaseholdings should, in practice, operate as freehold title has been criticised by Aboriginal Social Justice Commissioner Patrick Dodson as an attempt to turn public land into private holdings.

Brennan pointed out the there have always been strict requirements governing pastoral leases, which were designed to strike the right balance between using the land efficiently and avoiding land degradation. "The reason why, last century, the crown issued pastoral leases and not freehold title was so that the government could maintain sufficient control to ensure that if a pastoralist was not investing in or utilising the land sufficiently well, [they] would be liable to forfeit some or all of the interest in the land."

This century, with increasing land degradation, more conditions have been placed on pastoral leases to ensure the land is not over exploited. "Both these aims could not have been achieved if there had been an outright grant of a freehold interest in the land which would have minimised the government's control."

As a result of this, Brennan said, some pastoralists and politicians have used the native title debate as "a convenient means of trying to ensure pastoralists get something more akin to freehold". It would be "regrettable" if they succeeded, he said, adding that supporters of Aboriginal rights and the environment had to concede pastoralists' rights to continue their pastoral and agricultural activities without having to engage in protracted proceedings with lawyers and anthropologists.

Kimberley Land Council executive director Peter Yu writing in the April 1 Australian said the Nationals and NFF's refusal to "deal constructively with coexistence" wasn't just about some pastoralists taking the opportunity to try and upgrade their rights, but was "a whole new round of Aboriginal dispossession".

Brennan said that if Aborigines, who were able to prove a native title claim over a pastoral lease faced the extinguishment of native title and were granted the equivalent of freehold title, "that would be a move once again towards a terra nullius mentality".

Brennan believes that the NFF's push to extinguish native title over pastoral leases is "not economically feasible for the government and therefore politically stupid for the National Farmers Federation".

In the Wik judgement, Brennan said, the majority of judges set down two propositions of law. First, a pastoral lease was not strictly a lease and therefore did not give a right of exclusive possession. It therefore could accommodate the co-existence of native title access and usage rights. The second "often overlooked" proposition, he said, was that because a pastoral lease is not strictly a lease, at its expiry there is "no reversion of the interest to the crown". This means that the rights of the native title holders "flowers again" and, with the protection of the Racial Discrimination Act and the Native Title Act, may be something akin to freehold.

If the aim is to extinguish native title on pastoral leases "you would have to start with the presumption, at the Commonwealth level, of paying just compensation for the freehold value of 42% of the Australian continent", Brennan said. That, he added, would encourage native title compensation claims and employ lawyers "for the next century" as wholesale extinguishment would remove all incentive for Aborigines to negotiate.

Another proposal reportedly under consideration by PM John Howard is for the "codification" of pastoral leaseholders' and native title holders' rights. There are two parts to this idea said Brennan. First, pastoralists want assurance that they will be able to continue to do everything they have been authorised to do in the past. Aboriginal groups are agreeable to that, Brennan said, and as long as pastoralists stick to what they are authorised to do under the lease, they could be guaranteed rights without negotiation with native title holders.

The second issue involves the rights of the Aboriginal native title holders. "The problem is that miners and pastoralists do not know who has rights and what the extent of those rights are until there's been a determination by a tribunal", Brennan said, adding, pastoralists don't want to "engage QCs and anthropologists and have lengthy tribunal determinations as to whether a particular Aboriginal group is allowed to come on to the pastoral lease to hunt, fish, camp, conduct ceremonies".

He said that a guaranteed statutory minimum of traditional Aboriginal rights should be granted without a full hearing and determination by a tribunal to Aboriginal native title claimants if they can satisfy a strict threshold test. "But the guaranteed statutory minimum by codification should not be seen as a back door technique of extinguishing or wiping out any additional native title rights which may be claimed", Brennan warned.

Codification was a good idea, Brennan said, if it delivered "cheaply and efficiently" minimum statutory Aboriginal access and use rights, but left open the possibility of Aborigines exercising additional rights "if they've proved their case before the tribunal or received consent from the pastoralist".

But this is different from what the NFF has in mind. On March 20, NFF president Donald McGauchie said codification would be an acceptable alternative to the extinguishment of native title rights only if common law native title rights were removed in return for statutory access rights.

However, the reality is that pastoralists in Western Australian, the Northern Territory and South Australia have always had to provide some Aboriginal access to their pastoral lands, said Brennan, and the Cape York regional land use agreement finalised by Aborigines and pastoralists in 1995 "permits the same thing".

"We're left with the pastoralists in the south of Queensland and in the west of NSW, who say that we don't think there are any Aborigines who have sufficient connection with our land to be allowed to exercise traditional rights and functions."

As to why the NFF, the Nationals and others are insisting on the extinguishment of native title on pastoral leases, Brennan suggests they are clinging on to "a vain hope, given the financial cost and complexity of the tribunal processes that would be needed to extinguish native title with Commonwealth compensation, that the prime minister will agree".

Maybe they have legal advice, he said, that federal parliament could legislate to return the matter to the states, thereby allowing the states to extinguish native title without compensation. In that case, Brennan said, they would have to rely almost exclusively on section 5126 of the constitution — the "race" power — and argue that the Commonwealth parliament had power to make laws, in light of the 1967 referendum, completely adverse to the interests of Aborigines.

"That's a very novel argument", said Brennan, "which I had never heard put before until March 26 during the debate over the Hindmarsh Island bridge bill in the House of Representatives. The government, for the first time in 30 years, told the parliament that they could legislate the Hindmarsh Island bridge bill under the race power". He said that it would be a very dangerous ploy and would inevitably involve a test case in the High Court to determine whether parliament could distort the 1967 referendum and legislate against Aboriginal rights.

More likely, given the ferocity of the anti-native title campaign, there will be a more expansive codification of pastoralists' rights, a very limited codification of Aboriginal rights, a very harsh threshold test for Aborigines to lodge native title claims and a very strict tribunal process which ensures that only those Aborigines who have a strong, proven, ongoing connection to the land would gain anything additional to the very minimal statutory rights granted under native title.

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