ANTaR Update # 35 (Monday 5 April, 1998)

Hi all, With the government's native title amendment bill continuing in the senate this week, there are a number of things you can do to help maintain pressure on the Government, opposition parties and Senator Harradine. *Thank you to all the people who came to action last thursday. It was a great display of support at very short notice and was well recieved by the National Indigenous Working Group and opposition politicians. Items in this update: 1. The Bill as amended by the Senate in its first passage last year. 2. The form of the Bill currently before the Senate and what you can do. 3. The Hindmarsh decision and what you can do. 4. Ribbon Bee Appeal 5. Reconcilliation in the ACT Website ********************************************************** 1. THE BILL AS AMENDED BY THE SENATE IN ITS FIRST PASSAGE LAST YEAR. ********************************************************** In following the current passage of the Native Title Amendment Bill through the Senate it's useful to have an idea of what amendments were accepted or rejected by the Senate at the Bill's last passage. Although hundreds of amendments were proposed by the opposition parties, many of these were rejected as a result of Senator Harradine voting with the Government. The following is a summary of the major wins and losses from the Bill's first passage. The summary is based on the conclusions of an article, "The Native Title Amendment Bill: What Happened in the Senate?" by Paul Burke which appeared in the Feb issue of the Indigenous Law Bulletin. A copy of this article can be accessed at the ANTaR website (http://www.antar.org.au). MAJOR WINS: + removal of the proposed 6 year sunset clause on claims under the NTA; + ensuring that the Racial Discrimination Act prevails over all the provisions of the NTA (except for the validation provisions); + rejection of Government's proposed physical connection test for native title claims (this test would have excluded claims where claimants have a spiritual connection with the land but cannot demonstrate physical connection), and limitations on the regular physical access test for access to leases where claims are pending; + retention of the Right to Negotiate on pastoral leases, in national parks, in urban areas, and for private infrastructure projects; + rejection of early ministerial intervention in Right to Negotiate processes, and restoration of current time limits for negotiations; + native title rights on pastoral leases to be suspended, not permanently extinguished, as was proposed by the Government; + full claims can be made to vacant crown land and Aboriginal reserves irrespective of previous lease history provided there is current occupation by the claimants. MAJOR LOSSES - the Government's provisions for validation were passed. This includes no notification by gazettal of acts to be validated and no fast-track compensation for validated acts; - the Government's provisions for diversification to primary production were largely passed and an alternative scheme for diversification on pastoral leases involving greater consultation with native title holders was defeated; - a sunset clause on compensation claims of six years from the Bill's passing remains; - guaranteed access to the National Native Title Tribunal was lost. States can set up their own tribunals (but must have at least one member of the NNTT). - rejection of the right to negotiate and other proceedural rights over the inter-tidal zone and offshore areas. EFFECTS ON REPRESENTATIVE BODIES A number of the Government's changes adversely affect the operations of Representative bodies in carrying out their responsibilities under the legislation: - the proposed re-certification of Representative Bodies will further strain their already meagre resources; - Additional information required in applcations, plus certification requirement and lack of flexibility in the time for the Registrar to consider applications for registration may make it harder to respond to s29 notices.; - Difficulty in finding out about validated acts if State/Territory governments do not comply with the notification provisions. ******************************************************** 2. The form of the Bill currently before the Senate and what you can do. ******************************************************** In reintroducing the Bill into the Senate, the Government has included about 100 of the amendments made by the Senate at its last passage. Labor's original amendments will be reintroduced along with others from the minor opposition parties and Senator Harradine. Most attention has focussed on four main sticking points: - application of the Racial Discrimination Act to the Bill; - the right to negotiate on pastoral leases; - the threshold test for registering native title claims; - the sunset clause for making claims under the act. what you can do: *WRITE LETTERS/FAXES/EMAILS to the politicians. Call 62777111 to obtain the fax numbers. Address letters to Parliament House. Email addresses: Senate >>DEMOCRAT >>senator.lees@aph.gov.au >senator.woodley@aph.gov.au >>senator.stott.despoja@democrats.org.au >>Andrew.Bartlett@democrats.org.au >> >>GREENS >>senator.brown@aph.gov.au >>senator.margetts@aph.gov.au >> >>ALP >>senator.faulkner@aph.gov.au >>senator.bolkus@aph.gov.au >>LIBERAL >>senator.hill@aph.gov.au >>senator.minchin@aph.gov.au >>NATIONAL >>senator.boswell@aph.gov.au >>IND >>senator.colston@aph.gov.au >>senator.harradine@aph.gov.au >> >> House of Representatives >>ALP >>Kim.Beazley.MP@aph.gov.au >>G.Evans.MP@aph.gov.au >>D.Melham.MP@aph.gov.au >> >>IND >>Peter.Andren.MP@aph.gov.au *ATTEND SENATE DEBATES The times for the Senate debate can be obtained by ringing Parliament House on 62777111 ************************************ 3. The Hindmarsh decision and what you can do. ************************************ The question before the High Court was whether a Commonwealth law (the Hindmarsh Bridge Act) amending the Heritage Protection Act to prevent Aboriginal people from using that Act to stop the building of a bridge, is a valid use of the "races power" in the constitution. The Aboriginal women argued that the races power could only be used to single out a race for its benefit, not for its detriment. In a 5:1 decision, the High Court found for the Commonwealth on a range of bases. Brennan and McHugh said that the Commonwealth could repeal (partly or in whole) valid legislation. The Heritage Protection Act could be validly repealed by the Hindmarsh Bridge Act without raising any issue about the scope of the "races power". They made no comment on that power. Gummow and Hayne said that the races power could be used to the detriment of a race (though subject to qualifications which they did not need to explore). Gaudron and Kirby said that the races power could not be used to the detriment of Aboriginal people, but Gaudron did not characterise the Act as detrimental. In summary, of the four judges who commented on the races power, two said it was capable of supporting only beneficial laws and two disagreed. Implications for Wik Despite some incorrect reporting and claims by the Government, it is absolutely beyond doubt that the constitutional question of whether the races power can be used for the detriment of a race is still an open one. If anything is to be drawn from the case, it is that the constitutional status of the Ten Point Plan is more uncertain than ever. What you can do Making your voice heard is important - for influencing negotiations during the current Senate debate and afterwards: * Write to John Howard (fax: 02 473 4100) expressing your concern about the increased uncertainty surrounding the Government's Native Title Bill as the result of Hindmarsh. Let him know that you do not appreciate the misleading way his Government has presented to the public the High Court's decision. Point out yet again that a negotiated outcome based on respect for and protection of the existing rights of all the stakeholders is not only the fairest outcome but the only one which can avoid the litigation and division which it is now very clear will be the result of the Government's Bill * Encourage your networks to write as well, and encourage them to write to or visit their local members - we can supply more detailed briefings as required * Write to Senator Harradine TODAY (fax 02 6277 3739) letting him know how important these issues, particularly the retention of the right to negotiate, are to you. ************************************ 4. Ribbon Bee - Last one before Folk Festival! ************************************ The National Folk Festival begins on Friday and ANTaR is busy preparing. One way you can really help out is to come to the ribbon bee on Tuesday at 5.30 pm CAA Office, top floor of the Griffin Centre, Bunda St Civic. We need to thousands of ribbons for the 4 day event and we only have a couple of people helping out making them. Please come along if you can. ****************************** 5. Reconciliation in the ACT - Website ****************************** Reconciliation in the ACT have a new website! Check it out at: http://www.spirit.net.au/~dargavel/index.html ************************** ANTaR ACT Contact Details: ************************** Community Aid Abroad 6257 4472 (bh), or Cate Buchanan 0414 644 164 e-mail: antaract@interline.com.au websites: http://www.antar.org.au/act (ACT) http://www.antar.org.au (national) National Clearinghouse (Sydney) 02-95556138 ANTaR - Australians for Native Title and Reconciliation *****Please forward this message on to other interested people****** *****GETTING ON/OFF THIS LIST: If you would like to be included on or taken off this list please email your request to antaract@interline.com.au and it will be done. This page was last modified on Tuesday, 12-Sep-2000 21:10:27 EST