Reconciliation and Social Justice Library

What Australia does about Wik and how it does it will be an important mark of our maturity as a nation.

In this presentation I want to canvass some possible responses to the decision as options for consideration by all the stakeholders. In so saying, it is worth bearing in mind the observation of Justice Gummow in the High Court, who said:

"...the further elucidation of common law principles of native title, by extrapolation to an assumed generality of Australian conditions and history from the particular circumstances of the instant case, is pregnant with the possibility of injustice to the many, varied and complex interests involved across Australia as a whole." (Wik Peoples v Queensland (1996) 141 ALR 129 at 232)

Justice Gummow was there rejecting the kind of legislative role, the formulation of sweeping principle that is properly the function of the Parliament. Indeed the judgments of the majority were the very opposite of the judicial activism for which the Court is sometimes criticised. Pastoral leases do not necessarily extinguish native title. Each case must make its own contribution to the development of the principle in what Justice Gummow called "the time honoured methodology of the common law". That is a restrained, conservative and utterly traditional statement of the role of the courts in the common law world.

The legislatures are not confined by these methods and philosophies. The Commonwealth could pass a law tomorrow extinguishing native title wherever there is or has been a pastoral lease provided that it did so on just terms. That is, assessing liability for compensation to those native title holders whose interests were affected. That is its constitutional responsibility to any person whose property it acquires.

Although it may be within the power of the Parliament to make such a law it would be a response based upon no real consideration of the multiplicity of interests concerned or upon any real attempt to build on a consensus. It would, to use the words of Justice Gummow, be "pregnant with the possibility of injustice".

While courts and tribunals in the future will have to develop principles for the assessment of compensation where native title has been extinguished or impaired, its loss can never be fully expressed in money terms. The centrality of land to culture, to law, to tradition and to identity is not convertible into cash.

Global extinguishment of native title under pastoral leases remains inherently discriminatory no matter what level of compensation is offered. For the property rights of one class of Australians, indigenous Australians would be treated in a way that the property rights of others are not, and never would be, treated.

The enactment of some form of definition of native title rights and interests has an attraction to some industry groups. But to define and codify native title is almost certainly to risk limiting it and thereby partly extinguishing or impairing it.

A sunset clause on native title claims was suggested before the Wik decision and has been suggested again. But what is a sunset provision except a statement that native title not claimed before a certain date is extinguished?

The enactment of statutory access clauses for pastoral lease areas has been proposed as a substitute for native title rights which could be coupled with the extinguishment of those rights on such leases. That is, a form of codification which would seek to limit and thereby to partly extinguish or impair common law native title.

All these legislative responses face the same difficulties. They are at risk of discriminating against one class of Australians. And they involve unquantified and difficult to estimate levels of compensation. They raise the possibility of an implied or express amendment of the Racial Discrimination Act and a special adverse treatment of indigenous rights. That would be difficult to justify in a world in which the prohibition of racial discrimination has virtually reached the status of a customary norm of international law.

Why then these calls for native title to be extinguished altogether on pastoral leases or limited by codification or guillotined by a sunset clause or replaced by statutory access provisions?

The uncertain scope of native title rights and interests, their interaction with non-indigenous rights and the difficulty of working out that interaction in practical and workable ways are cited as factors which make negotiated arrangements difficult, if not impossible, to achieve and in any event too time consuming and expensive to pursue.

But there has been no systematic, orderly and committed approach by governments or industry anywhere in Australia to seek with indigenous people practical models for the working of the relationship between native title and pastoral rights and interests.

In Western Australia and some other parts of Australia pastoralists have declined to participate in negotiation about claims affecting their land. And they have done so on the basis that they cannot negotiate about rights the extent of which is not known. But there is and need not be anything sophisticated or mysterious or difficult about the co-existence of native title rights and the overriding rights of pastoral lessees. Their legal relationship which was confirmed in the Wik decision, was able to be anticipated by the terms of the Cape York Land Use Agreement.

There, the native title claimants agreed to recognise and respect the rights, interests and prerogatives granted to the cattlemen by the Government and their entitlements for renewal, extension or regrant of those rights and interests and prerogatives. A code of practice between the station lessees and the native title claimants was able to be proposed in simple and practical terms. Generally speaking, the co-existence of native title and pastoral rights will be a matter of very practical and down to earth management issues.

There is no inevitability about a case by case approach whereby pastoralists and native title claimants have to reinvent the wheel each time they negotiate. Governments and peak indigenous and industry bodies can take a lead in the development of practical and workable model codes or rules for co-existence which can confidently be adopted by individual negotiating parties with variations or modifications to suit local circumstances.

In this respect, the South Australian Government has provided an example of the kind of approach that can be taken. The law of South Australia provides for statutory access rights for Aboriginal people onto pastoral leases in that State. While not conceding the subsistence of native title on its leases, the Government asked the Tribunal to chair discussions between itself, the South Australian Farmer's Federation and the Aboriginal Legal Rights Movement in South Australia to try to reach a common position on the scope of the statutory access rights. Those discussions have proceeded and the Government produced a useful discussion paper and draft model agreement for consideration by industry and indigenous interests.

There is no reason why all State and Territory Governments could not embark upon similar exercises with respect to the development of models for the practical co-existence of native title rights and pastoral leaseholder rights.

That is not to say that statutory access clauses could not be offered as an attractive non-extinguishing alternative to the pursuit of common law native title determinations or agreements by native title holders. But whether it is native title or statutory access rights which are contemplated there is a need for rules or codes of practice to regulate the relationships between those rights and the pastoral lease.

In this respect there is a lack of reliable and organised information about what works and what can work. The Tribunal has established a database of model agreements which will be publicly accessible in due course to assist people generally in negotiating about native title.

In the meantime, however, there is a pressing need for a regulated and ordered approach to the pastoral lease issue which provides some prospect of outcomes which are just to all interests and have the legitimacy of broadly based support.

In this respect, I have proposed to the Government that it consider commissioning the Tribunal to conduct a special inquiry under s.137 of the Native Title Act with a view to developing proposals for model codes of practice and standard statutory access clauses as a non-extinguishing alternative to the pursuit of native title determinations. In support of the submission it has been put to Government that it seems likely that the reasoning which led to the judgments of the majority in Wik applies by analogy to pastoral leases in other States and Territories of Australia. It seems likely that elements of native title will have survived the grant of most classes of pastoral lease and that such surviving native title co-exists with the rights of the leaseholders.

There are, however, unresolved practical questions about the management of the relationship between the rights of pastoral lessees and the rights of native title holders. Individual negotiations are hampered by lack of precedents. Model codes of access and regime for managing the interaction of pastoral leasehold and native title rights backed by peak industry and indigenous groups and by State Governments would assist in the resolution of claims.

It has also been submitted that consideration could be given to the provision of standard form statutory access rights coupled with a regime for the management of those rights as an acceptable alternative to determinations of native title rights through Tribunal or court processes.

The provision of such rights would not involve the extinguishment or surrender of native title. It might, however, be more attractive to some traditional owners than the pursuit of native title determinations. The continuing availability of native title processes could provide the security of a fallback position in the event that some future government sought to reduce or restrict in some way the statutory rights.

If leaseholders and native title claimants can see a way forward by negotiation using model codes for co-existence or by way of a well defined optional statutory alternative to native title, there may be a lessening of concerns generated by perceived uncertainties about the interaction of native title and pastoral leases and the difficulty of implementing it.

The recommendation I have made is in the following terms:

"The Tribunal be requested by the Attorney-General to undertake a special inquiry under s.137 of the Act into the interaction between the rights of pastoral leaseholders and native title rights. The Tribunal should be asked to report to government about possible approaches to dealing with these issues. In particular it should be asked to consider:

1. Existing practices reflecting co-existence between pastoralists and Aboriginal people and the operation of existing statutory access clauses.

2. Workable codes of practice for pastoral lessees and traditional owners in relation to access to and use of pastoral leasehold land.

3. Enforcement and dispute resolution mechanisms to be embodied in such codes.

4. Processes for taking into account the rights and interests of traditional owners where improvements and changes of use are proposed.

5. The possibility of standard statutory access rights being provided on existing pastoral leases as an alternative mechanism for the enjoyment of native title rights.

I have proposed that a time limit of six to nine months could be imposed on reporting. The Tribunal could be constituted by a panel of three, including a Presidential Member, an indigenous member and a member with knowledge of the pastoral industry. Some or all of these members could be appointed to the Tribunal for a short term specifically to deal with the special inquiry.

It is pointed out that the Act permits the use of conferences under s.150 to try to resolve matters arising during an inquiry. This would provide a negotiating forum for stakeholders to enable them to reach agreed positions on particular matters such as codes of practice or the content and operation of statutory access clauses.

It is of course a matter for the Commonwealth Government as to whether it would support such an inquiry. If there is support for the concept at this conference it would no doubt be helpful if the Government could be so informed.

If is of great importance that on these issues, Australia's response is systematic, orderly, expeditious and, so far as justice is achievable, a just response.

There are, of course, other questions which have to be addressed. The scope of the debate about the right to negotiate is not widened by the Wik judgment. The essential issues remain the same. Their application is perhaps wider than some had hoped. There is here, a real issue for indigenous people about the legitimacy of claims brought by individuals without consulting their communities or groups within communities against each other. In this respect the role of Representative Bodies and the validation of claims by reference to the informed consent of all native title holders will be of critical significance.

The validation of now doubtful tenements is also a matter which must be considered by all parties. While native title holders may well regard the question marks over leases granted outside the Act processes since 1994 as Government reaping what it has sown there are many private individuals or groups involved whose concerns and interests are a political reality that must be faced.

The process of necessary amendment to the Native Title Act has not been made any easier by the Wik decision. On all sides there needs to be flexibility, openness and real dialogue.

The process of discussion that occurred under the umbrella of the Reconciliation Council last year showed that much can be achieved. A process of inquiry, dialogue and negotiation with respect to pastoral leases can also, in my opinion, achieve much needed calming of the debate and a greater prospect of legitimacy for its outcomes both domestically and internationally.

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