The government's Wik bill, on the day it was introduced to the lower house, was described by Northern Land Council chairperson Galarrwuy Yunupingu as the final drink from the poisoned waterhole for indigenous people. Â鶹´«Ã½ Weekly's JENNIFER THOMPSON spoke to Jesuit priest and social justice lawyer FRANK BRENNAN about how the bill fails indigenous people.
A chief problem, said Brennan, is that the legislation winds back the right to negotiate with mining companies.
Even if traditional owners can prove they still have native title rights, after passing a strict new threshold test, they would lose the right to negotiate with mining companies on pastoral leases as well as on national parks and even areas which have been granted to Aborigines and Torres Strait Islanders.
This is important, "bearing in mind that 42% of the Australian continent is covered by pastoral leases and that's where the majority of new mining activity occurs".
The bill gives Aborigines the same rights as the pastoralist — the right to compensation for disturbance of the land. "What was seen as the special connection that the Aboriginal people had with the land and the prospect that there might be some economic empowerment for Aboriginal groups resulting from large mineral development on their traditional land, will be lost", Brennan said.
Handouts
Another significant shortcoming, according to Brennan, is the possibility for a state government, "particularly Mr Borbidge's Queensland government", to compulsorily acquire proven native title rights, not for a public purpose like building a freeway, but to give more rights to the pastoralist. "That, of course, would be an act of racial discrimination."
"I've not heard of any situation where a state government acquires an individual's rights, like a freehold, not for a public purpose, but to give it to their mates."
In a recently published article, Brennan described as politically impossible the option of state governments upgrading pastoral leases to freehold. He suggested that the Coalition is keeping this option in the bill as a bargaining chip to get Labor to support other reactionary provisions.
One of these might be the removal of the right to negotiate for land which has been granted to Aborigines like a deed of grant in trust.
Where there is conflict between the rights of a pastoralist and the rights of Aboriginal people, the legislation states that native title rights will be extinguished. A majority of the High Court in Wik thought that situation would lead only to a suspension of native title rights.
State control of tribunals
In the 1993 native title negotiations with the Keating government, Aborigines thought that they had the right to negotiate and had guaranteed access to the federal native title tribunal, said Brennan. The new amendments make it possible for states to set up their own tribunal procedures to take over many of its tasks.
The changes to the native title tribunal regime were not mentioned in the draft of the bill, presented in late June, and are just some of the "mean and nasties which have been put in at the final stages of the process".
Another problem is the new threshold test. The government is now trying to insist that to register a native title claim, traditional owners must show they have maintained a traditional physical connection with the land.
While the government has said that this reflects the common law, Brennan's understanding of the 1992 Mabo decision is that the Aboriginal group must show that it has maintained contact with the land as far as practicable.
Where a pastoralist has locked Aborigines out, particularly following the 1967 award wages case, then it's still possible to have maintained a connection while not being on the land, because there's no obligation to engage in civil war, said Brennan.
At the start of the Wik debate, anecdotal evidence showed that pastoralists and Aboriginal people could work out how to coexist. However, since pastoralists' organisations have been "going for broke", the political atmosphere has made that a much tenser relationship, said Brennan.
As recently as the end of April, the National Farmers Federation was claiming it was not seeking anything more than the rights it already had. Now, Brennan notes, in the attorney general's second reading speech, he told the parliament the NFF has continued to call for the extinguishment of native title on pastoral leases.
Where there has been some cooperation, pastoralists have been under pressure from national organisations not to be so reasonable, Brennan said. The NFF's fear campaign "has had pastoralists thinking, 'Oh my God, if I allow Aboriginal people onto my land maybe this means they get additional rights, which in the future would be enforceable against me'".
Commenting on the relative silence from mining companies, Brennan noted that the legislation gives the miners everything they want. They wanted to be sure that the right to negotiate at both the exploration and development phases would be taken away, as would the right to negotiate on pastoral leases.
The big mining interests know that it's very unlikely that the minor parties or the independents will come on side. "They've known ever since December that the only way they'll get everything they want is by having Beazley accepting that in the name of economic development and generation of jobs, that the right to negotiate doesn't work and should be trimmed back as far as possible."
The Labor Party has said that Aborigines with native title rights on pastoral leases should have the right to negotiate if the land is compulsorily acquired by a government, or subject to extreme changes in use by pastoralists; that native title should not be extinguished if title is transferred from one government to another or a statutory authority; and that the sunset clause should be abandoned.
Green senators Dee Margetts and Bob Brown have rejected the bill outright. Brown told Â鶹´«Ã½ recently that while they would support amendments to improve the bill, "It's so far beyond the pale, it's better to reject it outright".