Federal Government of Australia --- "The Federal Government's 10 point Response to Wik" [1997] IndigLawB 46; (1997) 4(2) Indigenous Law Bulletin 12

The Federal Government's 10 Point Response to Wik

1. Validation of acts/grants between 1 January 1994 and 23 December 1994

Legislative action will be taken to ensure that the validity of any acts or grants made in relation to non-vacant Crown land in the period between passage of the Native Title Act and the Wik decision is put beyond doubt.

2. Confirmation of extinguishment of native title on 'exclusive' tenures

States and Territories would be able to confirm that 'exclusive' tenures such as freehold, residential, commercial and certain, agricultural leases and public works in existence on 1 January 1994 extinguish native title. Agricultural leases would be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended.

3. Towns and cities and municipal services

Impediments to the provision of municipal services on land in which native title may exist would be removed. The right to negotiate would be removed in relation to the acquisition of land for third parties in towns and cities, although native title holders would gain the same procedural and compensation rights as other landholders.

4. Co-existence of native title on pastoral leases

As provided in the Wik decision, native title rights over existing pastoral leases and any agricultural leases not covered under 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralist. All activities pursuant to, or incidental to, 'primary production' would be allowed on such leases, including farmstay tourism, even if native title exists, provided the dominant purpose of the activity is primary production.

However, future government action such as the upgrading of perpetual or 'exclusive' leases or freehold would necessitate the acquisition of native title rights and the application of the regime described in 7 below.

5. Statutory access rights

Before a native title claim is determined, claimants would be able to access the land for defined traditional purposes, provided the claim meets a higher registration test and they can demonstrate a current physical connection to the land.

6. Future mining activity

• For mining on vacant Crown land there would be a higher registration test for claimants seeking the right to negotiate, no negotiations on exploration, and only one right to negotiate per project.
• For mining on other 'non-exclusive' tenures such as current or former pastoral leasehold land and national parks, the right to negotiate would continue to apply in a State or Territory, unless and until that State or Territory provided a statutory regime acceptable to the Commonwealth which included pastoral rights [at least] equivalent to other parties with an interest in the land (eg the holder of the pastoral lease) and compensation which can take account of the nature of co-existing native title rights.

7. Future governments and commercial development

• For compulsory acquisition of native title on vacant Crown land in towns and cities, there would be no right to negotiate (see 3 above). On vacant Crown land outside towns and cities there would be a higher registration test to access the right to negotiate, but the right to negotiate would be removed in relation to the acquisition of native title rights for third parties for the purpose of conventional government-type infrastructure.
• For compulsory acquisition of native title rights on other 'non-exclusive' tenures, such as current or former pastoral leasehold land and national parks, the right to negotiate would continue to apply in a State or Territory unless and until that State or Territory provided a statutory regime acceptable to the Commonwealth, which included procedural rights [at least] equivalent to other parties with an interest in the land (eg the holder of the pastoral lease) and compensation which can take account of the nature of co-existing native title rights.
• Future actions for the management of any existing national park or forest reserve would be allowed.
• A regime to authorise expansion activities such as the taking of timber or gravel on pastoral leases would be provided.

8. Water

The ability of governments to regulate and manage surface and subsurface water and water and off-shore resources and the rights of those with interests under any such regulatory or management regime would be put beyond doubt.

9. Management of claims

• In relation to new and existing native title claims, there would be a higher registration test to access the right to negotiate, amendments to speed up handling of claims, and measures to encourage the States to manage claims within their own systems.
• A sunset clause within which new claims would have to be made would be introduced.

10. Agreements

Measures would be introduced to encourage the negotiation of voluntary but binding local and regional agreements as an alternative to more formal native title machinery.