This year marks 21 years since the Wik Peoples v Queensland decision, legislating whether pastoral leases over land in Queensland extinguished Native Title. But has an outcome, which determined that in some cases Native Title could survive the grant of a lease, changed things for Aboriginal communities today?
The decision itself was not momentous - merely stating that the existence of a lease itself did not extinguish Native Title. However, the barrage of criticism for this High Court decision was demonstrable of the divisive rhetoric of the time after a freshly elected Howard government went into battle for the ‘mainstream’ and forged ahead with their 10 point plan to amend the Native Title Act - a plan which led to the longest debate in the Australian Senate's history.
The Deputy Prime Minister, Tim Fisher, and Queensland Premier, Rob Bobridge, made claims that the High Court decision went beyond their duties and attacked the High Court for purported “judicial activism” against mainstream interests. Many feel like this event was no great victory for the Aboriginal people, it was no civil rights victory, but merely a decision that the grant of a pastoral lease did not necessarily extinguish Native Title and in fact, would extinguish Native Title to the extent of any inconsistency.
The reason for the outcry from the political heavyweights was not the decision itself, but what it represented – sectional interests prevailing over mainstream interests despite the cost being essentially nil.
This could not stand.
20 years ago...
On 8 May 1997 (exactly 20 years ago), John Howard said, “Indigenous leaders have repeatedly been told by me that pastoralists and farmers must be guaranteed the right to carry on their normal day to day activities without fear of interference or hindrance.
My aim has always been to strike a fair balance between respect for native title and security for pastoralists, farmers and miners.
That is one reason why I staunchly oppose blanket extinguishment of native title on pastoral leaseholds.”
The fair balance of course was in the interests of industry and capitalism, not the rights, land and culture of the Aboriginal minority.
And so the 10 point plan was formed by the Coalition and the essence of which were the broadening of power to the federal and state governments to extinguish native title, introducing measures to make the initiation of claims burdensome and restrictive and removed all right to claim over urban areas.
Mick Dodson said at the time, ''By purporting to 'confirm' extinguishment by inconsistent grants, the Commonwealth is purposely pre-empting the development of the common law - not allowing sufficient time to integrate the belated recognition of native title into Australia's land management system. This does not require the obliteration of Indigenous interests so as to favour non-Indigenous interests.''
The 10 points were:
- Validation of acts/grants between 1 January 1994 and 23 December 1996
Which meant that any decisions granting exclusive Native Title were rescinded where the land was used for ‘primary production;’
- Confirmation of extinguishment of native title on ‘exclusive’ tenures
Which meant that the government could solely interpret what ‘exclusive’ use meant.
- Provision of government services
Which meant if the grant of native title impeded the government’s ability to provide services, it would be extinguished.
- Native title and pastoral leases
Which meant that native title rights over current or former 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. Aboriginal rights were always secondary.
- Statutory access rights
Which is where registered claimants could demonstrate that they had physical access to pastoral lease land, their continued access would be legislatively allowed until the native title claim is determined.
- Future mining activity
The threshold for claimants was significantly higher on land that was earmarked as having the possibility of future mining activity. Even if native title was established under the rigorous tests, it was extinguished in a large number of cases in the interests of mining.
- Future government and commercial development
The same high threshold of 6 above applied to this point.
- Management of water resources and airspace
This point was to clarify that even in cases where native title could be proven under the more stringent legislation, water and air rights remained with the government.
- Management of claims
This set out the higher registration tests and cumbersome claims process.
Recommendation that there be agreements as opposed to native title formal claim process.
The Groundhog Day of the Adani Coal Mine.
Fast forward 20 years and we are living the very consequences enunciated by Howard in his 10 point plan where the power rests with the government, and the ethos of the original 1993 Keating legislation which intended to redress historical wrongs is long forgotten, and we live in an age where communities with continuing connection to land are being railroaded by the economic interests of mining companies.
The recent High Court decision known as 'McGlade' found that a single claimant to prevent a land use agreement from being registered. Previously, Indigenous land use agreements could be registered by the Native Title Tribunal so long as they were authorised by a representative group. Immediately following this decision, responding to concerns of mining companies, the government introduced a Bill to parliament to overturn the Federal Court decision and after a Labor caucus meeting – it is expected to have bipartisan support without having had any Indigenous community consultation.
Gautam Adani is said to have stated that the Native Title “issues” were slowing the investment and, accordingly, Malcolm Turnbull is pressing ahead with changes to the Native Title legislation to pave the way for the Adani mine to proceed despite extensive community outcry against the mine both from the Indigenous and non-Indigenous community.
The well-reported discussions between Adani Mining executives and our Prime Minister Malcolm Turnbull is further evidence of the perception of native title to the coalition – an inconvenience that can be extinguished to make way for commerce. Gautam Adani is said to have stated that the Native Title “issues” were slowing the investment and, accordingly, Malcolm Turnbull is pressing ahead with changes to the Native Title legislation to pave the way for the Adani mine to proceed despite extensive community outcry against the mine both from the Indigenous and non-Indigenous community.
It is clear 21 years later that the stance taken by the Howard government that Native Title was something that can be revised and watered down repeatedly is the remaining status quo in 2017.
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