By Jennifer Thompson
On July 30, the United Nations special rapporteur on indigenous people reiterated what the National Indigenous Working Group (NIWG), church leaders and others have been saying — and what the Australian government has been denying — that the native title amendment bill, due in parliament in late August, aims to extinguish native title.
In her report to the UN Commission on Human Rights conference in Geneva, Dr Erica-Irene Daes said that, despite the Mabo decision and other improvements recognising native title, "There remains great difficulty in bringing claims to land due to the criteria established, which are wrought with discriminatory and colonial biases".
She also noted that the government's proposed legislation "focuses on the extinguishment of native title by pastoral leases".
Aboriginal affairs minister Senator John Herron, who was also at the conference, countered by saying that it was "specifically incorrect" to suggest that John Howard's 10-point plan aimed to extinguish native title. Daes responded that, while corrections to the final report would be considered, she thought the main points with regard to Australia were correct.
There is little doubt that the government's bill aims to achieve what the NIWG has specifically rejected — the extinguishment of native title on pastoral leases by de facto means. Its April response to the Wik decision and government's proposed amendments to the Native Title Act said native title should not, in effect, be extinguished by:
- <~>unreasonable threshold tests for the acceptance of native title claims;
- <~>"physical connection" tests;
- <~>sunset clauses on claims; or
- <~>precluding towns, cities and waterways from claims or the right to negotiate.
Even before the government added its 10-point plan to the proposed legislation, the NIWG said that the proposed amendments to the threshold test (a level of proof required by the Native Title Tribunal before claimants are granted the right to negotiate) were too severe. The government wants to reduce indigenous involvement in negotiations over mining and other activities on Aboriginal traditional land.
Howard's 10-point plan proposes to further restrict Aborigines' right to negotiate. It refuses to allow Aborigines the right to negotiate on mining exploration plans on vacant crown land and limits negotiations to one instance per mining project, despite the fact that it may involve a number of native title claims. Limits on the right to negotiate would not apply to renewal, re-granting or extending the periods of mining leases.
According to the government's pre-Wik outline of its proposed changes, there would also be no right to negotiate over land to be acquired for government or private sector infrastructure projects such as a "gas pipeline supplying a major city".
Following the June release of the government's latest draft of the bill, the NIWG criticised the attempt to wind back the right to negotiate, saying it would, in effect, render native title meaningless. "The right to negotiate is essential — it both reflects the common law reality of native title and the importance of links with the land to our cultures."
As well, the bill confirms that "exclusive" land tenures — freehold, residential, commercial and public works, agricultural leases to the extent that they confer exclusive possession and pastoral leases conferring exclusive possession — existing before 1994 will extinguish native title.
Native title rights over any other agricultural and pastoral leases would also be permanently extinguished if they clashed with the pursuits of the lease holder. Such activities have been significantly expanded to include anything related to primary production, including farm-stay tourism.
The bill still includes a right to negotiate and compensation for losing native title on land — including pastoral leases — acquired compulsorily. The Queensland government has already passed the Queensland Natural Resources Legislation Amendment bill, introduced by Howard Hobbs (a pastoral lease holder), to compulsorily acquire land and convert it into perpetual leasehold or freehold.
Native title advocate Father Frank Brennan described state governments' upgrade of freehold title to pastoral leases as a legally unwise and unnecessary palliative to pastoralists. In the July 11 Australian, he said taxpayers won't be keen to pay for large pastoralists such as Kerry Packer or the Sultan of Brunei to convert their leases to freehold.
An example of this was the huge windfall granted to Queensland developer George Quaid, who, with Bjelke-Petersen era largesse, was able to upgrade the Starke pastoral lease on Cape York for $30,000 and then advertise the 250,000 hectares of rainforest overseas for $26.5 million.
Another example, given by University of Queensland Professor John Holmes, is the Line Hill pastoral lease, which was upgraded to freehold and then, carried on a speculative wave of sales, valued at $14 million.
"Such a windfall because of speculation would be a total misuse of resources", Holmes was quoted in the May 10 Sydney Morning Herald . "There is a loss of public access, Aboriginal rights and legal control of the land."
Control over what could be done to the land, including important environmental restrictions on clearing and overstocking, are lost when land is privatised.
The other major problem with the government's bill is its insistence that the Native Title Tribunal accept continued access rights only from native title claimants who have a current physical relationship with the land.
Many Aborigines in Queensland and NSW lost contact with their land in the late '60s, when it became mandatory for pastoralists to pay Aboriginal workers award wages. Other states have provided continued statutory access rights for traditional activities.
According to Kimberley Land Council director Peter Yu, if the Senate passes this bill, it will mark the final theft of Aboriginal land. He criticised the bill for the suspension of common law access rights and its restriction of access to those who could prove continued access.