National Indigenous Working Group --- "Critique of the 10 Point Plan" [1997] IndigLawB 56; (1997) 4(3) Indigenous Law Bulletin 10
Critique of the 10 Point Plan
by the National Indigenous Working Group
Ed's note: this was the response of the National Indigenous Working Group to the Government's 10 Point Plan response to the Wik at the time this issue of the Indigenous Law Bulletin went to print. As the Government's position does not yet appear settled, this will certainly not be the last word on the issue.
The Prime Minister's 10 Point Plan does not provide a fair and reasonable response to Wik, despite the Prime Minister's protestations. Blanket extinguishment of native title on pastoral leases has never been a viable option. This was made clear in the Government's own advice in its position paper on amendments to the Native Title Act [1993 (Cth)] in May last year (see Towards a More Workable Native Title Act-An Outline of Proposed Amendments, May 1996, para 24, p 12). Proposals for blanket extinguishment have been the stalking horse for the widespread effective extinguishment of native title enabled by the 10 Point Plan.
In fact the 10 Point Plan does nothing to protect native title rights, but does provide for a substantial upgrading of pastoralists' rights, at the direct expense of indigenous peoples' ability to enjoy the rights which have been recognised by the courts.
Politics determined the Plan, and it is being altered to be even more detrimental to indigenous people as negotiations continue with the National Party and the Liberal back bench.
The 10 Point Plan will result in a significant windfall for pastoralists, with the potential for a massive compensation bill to be funded by the taxpayer. In the process, the legal and human rights of indigenous Australians are being eroded.
The Plan is not a fair basis for negotiations with indigenous interests to resolve the issues.
Point 1: Validation of acts/grants between 1 January 1994 and 23 December 1996
Indigenous representatives have made clear their agreement to the confirmation of all pastoral acts done within the terms of existing pastoral leases. Typically this would cover raising livestock and incidental activities such as establishing fences, yards, bores, mills and accommodation. However, in fairness, such confirmation of pastoralists' rights should involve confirmation of native title rights as well. The 10 Point Plan does not provide for this.
The validation of grants is a different question. These grants would include many exploration and mining tenements. All governments were on notice that the question of native title on pastoral leases had not been resolved in the courts and that the Native Title Act, provided a process (the Right to Negotiate provisions) for making such grants with certainty. Only Western Australia extensively used the process. In other States, which chose not to use the process, native title holders were effectively denied the Right to Negotiate, including over some large mining developments.
The Government's proposal for blanket validation of grants is inherently unfair, offers nothing to native title holders whose rights have been side-stepped, and rewards those States which have broken the law.
Point 2: Confirmation of extinguishment of native title on 'exclusive' tenures
Legislative confirmation that so-called 'exclusive' leases granted before 1 January 1994 extinguish native title is apparently an attempt to codify the common law. Whilst it is accepted that private freehold grants and residential leases extinguish native title, there is concern that, depending on how wide the net is cast, such confirmation may effect a legislative extinguishment of currently existing native title rights.
Agricultural leases are a particular concern. While fence to fence intensive cropping may indicate exclusive possession was intended, some pastoral leases also include agricultural purposes even though the land is not truly agricultural land. Depending on how the legislation is worded, it could amount to a licence for States to implement blanket extinguishment on any lease which refers to agricultural usage, ie this could result in de facto extinguishment of native title across vast portions of Australia.
The Government should not pre-empt the development of the common law.
Point 3: Provision of services
It is difficult to see what is intended by the removal of so-called 'impediments' to the provisions of government services and what this proposal might mean in practice. Governments already have the power to compulsorily acquire native title rights, but native title holders have the same procedural rights as other title holders.
If 'removal of impediments' means removal of these or other procedural rights this would clearly be discriminatory. If compensation is seen as the impediment, its removal would breach the just terms compensation provisions of the Constitution. If procedural rights and compensation will be maintained the question remains: just what are the 'impediments', or is it that the States see the mere existence of native title as an impediment?
Point 4: Native title and pastoral leases
Pastoral leases generally limit the rights of pastoralists to grazing and incidental purposes. The definition of primary production based on the [Income] Tax Act is much wider including agriculture, and fishing and forest operations. Lifting the Native Title Act processes from all primary production as proposed will allow States to authorise much more intensive use of pastoral land without negotiation with native title holders . Apart from ecological threats, this is unfair to native title holders who may lose any chance of enjoying their residual native title rights because of intensive agriculture, tourism etc.
Also, there appears to be no procedure for minimising the detrimental effect on native title, for example, by limiting the upgrade to what is needed for a particular development.
The Government also has seriously misstated what the Wik case decided. Wik decided that where there is a conflict, native title rights yield to pastoralists rights. Wik did not, contrary to the 10 Point Plan, decide that potentially conflicting native title rights were extinguished-it left open the question of revival of native title rights.
The Government's intention to legislate to extinguish conflicting native title rights is unnecessary and unjust. It does not reflect the Government's own legal advice published on 23 January 1997.
The combined effect of this misinterpretation of Wik and the lifting of native title considerations from all 'primary production' is that native title will potentially be progressively extinguished permanently as pastoralists' rights expand.
Point 5: Statutory access rights
Statutory access rights are being presented as the Government's attempt to assist the practical enjoyment of the rights recognised by the High Court in Wik. However, to make such rights dependent on the registered claimants already having such access, as proposed, is unjust. Many Aboriginal people have been prevented or actively discouraged from having access to their traditional country. This loss of access to country has often occurred in relatively recent times, including in the 1960s in the wake of the 1968 Cattle Industry (Northern Territory) case, which gave equal wages to Aboriginal workers.
This proposal means that those who currently have access will have that situation confirmed. However those who have strong traditional affiliation but who have been denied access may still not have the access they seek until their claim is determined, which can be a long and costly process. This will put them in a much worse position. Now at least they can assert their common law native title access rights without waiting for a formal determination.
The requirement for current access is illogical, unfair, and rewards those pastoralists who have obstructed legitimate access to traditional country.
Point 6: Future mining activity
In relation to mining activity on vacant Crown land, the 10 Point Plan is essentially stating that the Government's previously proposed amendments to the Right to Negotiate will go ahead. The Government's proposed amendments significantly reduce the rights of indigenous people to have some say about activity on their land. They go well beyond the requirements of workability. It should be remembered that when the previous Government denied native title holders a veto over mining on their land, the trade off was a right to negotiate subject to arbitration and ministerial override in the national interest.
In relation to non-exclusive tenures like pastoral leases, where a substantial proportion of mining activity takes place, the Government's proposal is to eliminate the native title holders' Right to Negotiate. This means that native title holders who have already suffered the disadvantage of having their traditional lands subject to the grazing of cattle, will lose the already limited Right to Negotiate. The Right to Negotiate framework in the Native Title Act has now been well tested and shown to be able to deliver results for all parties.
By using the phrase 'current and former pastoral leases' the Government is signalling that the Right to Negotiate will not apply even where the pastoral lease was abandoned long ago and the land is now vacant Crown land.
Point 7: Future government and commercial development
Under the current Native Title Act any compulsory acquisition of native title rights for the benefit of a third party must go through the Right to Negotiate procedure. For example, if a Government wanted to subdivide some vacant Crown land on the outskirts of a city for a private housing development and native title existed on that land, it would have to use the Right to Negotiate procedure.
The 10 Point Plan takes away this right
- if the third party is providing government-type infrastructure; or
- if the land is in a town or city; or
- if native title rights are being acquired to allow for an upgrade of a pastoral lease.
This latter acquisition is no ordinary type of compulsory acquisition of property. Here, the taxpayer will be funding the compulsory acquisition of the property rights of one group of private citizens (native title holders) to enhance the rights of another group of private citizens (pastoralists). Most Governments in Australia limit their compulsory acquisition powers to land needed for public purposes. This proposal will legitimate a government taking from one citizen to give to another and is fundamentally unfair and discriminatory.
But if the Government insists on proceeding with the proposal, it is essential that State or Territory compulsory acquisition regimes will only be approved by the Commonwealth if their procedures allow for proper notification, consultation and mediation of disputes for native title holders.
The proposal to remove the right to negotiate in respect of acquisition of land for third parties in towns and cities means that native title rights must yield to others, such as subdivision developers, with only the same limited procedural rights as other landholders. Native title holders in urban areas will be left without adequate protection for their rights.
How will the boundaries of towns and cities be defined? If they are defined as municipal boundaries, it is possible that in the more closely settled areas the Right to Negotiate in relation to compulsory acquisition for third parties will not apply to large areas.
In respect of national parks, forest reserves, and the taking of timber and gravel on pastoral leases, it appears that any native title rights are to be pushed to one side; that there will be no input from native title holders in respect of the management of such resources, even though native title rights may exist at law. If this is the case, the proposals are discriminatory. Presumably compensation may be payable, but this is not mentioned in the document.
Point 8: Management of water resources and airspace
It is unclear what is intended by the Government's proposal to put beyond doubt the regulation and management of water, off-shore resources and the rights under such regulatory management regimes. If the pre-emptive extinguishment or impairment of native title rights is intended, these measures will be strongly opposed.
Point 9: Management of claims
Proposals concerning the management of claims are clearly biased against the interests of native title holders. Measures to encourage the States to handle claims are a major concern, given the hostility and obstructionism exhibited by some States to any exercise of native title rights. The National Native Title Tribunal must remain available to native title claimants if the States are to be kept honest.
The proposal for a sunset clause would be unfair and discriminatory in that it would arbitrarily exclude native title holders from the processes of the Native Title Act designed to take account of the nature of native title.
Point 10: Agreements
Agreements provide a potentially useful mechanism for dealing with development and native title, especially for miners and pastoralists. Whether an agreements process will be helpful to native title holders will depend on the details of the legislation. Indigenous interests would want to be able to monitor the development of the legislation.
The changes proposed in the Plan and the Government's proposed amendments impair the incentive for developers to utilise any agreements provisions. The amendments must properly provide for the protection of native title if an agreements process is to be effective.
Reference
For details of the indigenous position in respect of the Government's response to Wik and native title matters see
Co-existence - Negotiation and Certainty. Indigenous Position in Response to the Wik Decision and the Government's Proposed Amendments to the Native Title Act, 1993, National Indigenous Working Group, April 1997. For copies please contact Kylie Higgins, ATSIC Wik Team, on phone (06) 289 3348.
Contacts
For further explanation of any legal aspects of these notes please contact:
- Paul Burke, Legal Adviser, ATSIC Wik Team, phone (06) 289 3349, fax (06) 285 2064.
- Michael O'Donnell, Lawyer, Kimberley Land Council, phone 091 931 118, fax (08) 91931163.
- David Allen, Office of the Aboriginal and Torres Strait Islander Social Justice Commission, HREOC, phone (02) 9284 9780, fax (02) 9284 9715.
Explanation of Some Terms
Right to Negotiate
In recognition of the special attachment that indigenous people have to their land, the Native Title Act provides that for acts relating to mining, and for the compulsory acquisition of native title for the purpose of making a grant to a third party, registered native title holders and claimants will have a Right to Negotiate before such an act can take place. The Right to Negotiate is not a veto. Where parties cannot agree there is provision for arbitration, and in some circumstances an override by the relevant Minister of an arbitrated outcome.
blanket extinguishment
Generally speaking, the extinguishment of native title occurs by individual grants of inconsistent titles, such as the grant of a freehold title, or by the use of vacant Crown land for a purpose inconsistent with continuing native title rights, such as the building of public facilities. This usually occurs block by block over a period of time. 'Blanket extinguishment' refers to the extinguishment of native title over a whole category of land, eg pastoral leases, at the same time.
blanket validation
Similarly, 'blanket validation' in the current context refers to the validation of all potentially invalid acts and grants made between the date of the commencement of the Native Title Act 1993 (1 January 1994) and the Wik decision (23 December 1996). The grants, mostly mining tenements, would be invalid if the processes under the Native Title Act to deal with native title holders were not used and native title did exist on that land. 'Blanket validation' is typically contrasted with a case by case approach.
procedural rights
Examples of procedural rights include: obligation to notify of proposed Government action, obligation on Government to consult those potentially affected, receive submissions, consider submissions, right to be heard by an independent tribunal on whether the act should be done.