Five Steps to the 10 Point Plan

This is the speech given by Sean Brennan at the
Canberra Workers' Club, 11 November 1997

The native title debate can seem complex although in some ways the principles at stake are quite straightforward. Perhaps the most useful path I can offer into this apparent complexity is to give a quick overview of how we got here and a few comments on the amendments currently before the Parliament.

So I'm going to talk about what might be called 5 steps to the 10 Point Plan. Step 1 is Australia before 1992 - when we were basically the only country left of our ilk - an English speaking colony with an indigenous population - which had refused to recognise in law the rights of indigenous people in their land.

Step 2 of course was the High Court's decision in Mabo. In the face of detailed evidence on the Meriam people's system of land ownership, the Court was compelled to confront the question which successive federal governments had ducked and dodged and generally put in the too hard basket. Could Australia continue to be classified as terra nullius - a land at the time of European arrival with no people, or more offensively no people with a sufficiently sophisticated system of social organisation to warrant recognition of their law?

By a 6:1 majority the Court decided to overturn terra nullius and recognise what it called native title. It acknowledged that indigenous people had a complex system of land management and organisation when Europeans got here and that in some instances it may be recognised by white law as continuing up to the present day.

It's important to dwell on this idea of recognition for a second. Native title is not an indigenous law concept. Nor is it a title deriving from the common law. Noel Pearson calls native title an interface concept between 2 spheres of law. It's about a connection that exists in its own terms in traditional law, and one which the common law removes its blinkers enough to see and recognise and give legal effect.

So the High Court recognised native title. Now because they were dealing with one case ­ the Meriam people's ownership of the Murray Islands ­ there were questions left unanswered after the Mabo decisions about native title and the rest of Australia.

The then Labour Government announced it would produce national legislation to clarify some questions and provide a framework for the resolution of others. After talks and negotiations for a year the Native Title Act passed through the Parliament and came into force at the start of 1994.

So step 3 was the NTA. It's a fairly complex piece of legislation so I'm going to simplify it tonight in the interests of brevity. I'll suggest it's basically an Act in 2 halves: the past and the future with 1 Jan 1994 marking the boundary. The past act regime was basically a victory for non-indigenous interests. The future act regime was essentially a compromise: it was the part of the Act where indigenous interests, negotiating perhaps for the first time with the government from a position of legal right, were able to achieve a decent compromise between native title and economic development.

I'll spend a moment on this past act/future act distinction because it's central to understanding what the Government's amendments are about. The past act regime is about what's called validation. After 1975 the Racial Discrimination Act said indigenous property holders are entitled to be treated in the same way as other property holders. Because governments can't just go granting titles to people over other property holders' land, there was a big question mark over 1000s of titles that had been granted over potential native title land after 1975.

So the first thing the NTA did upfront was validate those 1000s of titles: the rights of non-indigenous people to their land were secured by the NTA. Basically the Act said as far as the past goes, what's done is done and if you've suffered extinguishment after 1975 you'll get compensation and if suppression has happened then there's a potential for revival of your title. But there's no contest about the legal rights and wrongs of what was done on native title land. That's the past acts regime and the idea of validation.

The main thing that indigenous negotiators were able to secure in return were some decent rules of the game for the post-1994 era: a future acts regime. So the Act recognised and protected native title, by putting a protective coating of legal process around it. In doing so it struck a balance between the legitimate interests of business, resource developers and land users on the one hand and the property rights of indigenous people on the other. In essence it said that development can happen on native title land. But it has to happen according to the rules or it's invalid. And the rules are that the proposed action (eg grant of a lease or a permit) has to fit into one of 6 categories. I will mention 3 of the most important:

1. 'go ahead, no worries' category (eg pastoral lease renewals, low impact future acts etc) - certain grants proceed without reference to native title holders.

2. the freehold test, which affects a big majority of future acts: if you treat native title holders the same as a freeholder then the act is valid (so that might be a right to notice that a timber getter is coming on the land and a right to talk about what access route they'll use and what time of day they'll cut)

3. a special category of 2 types of acts which attract what's called the right to negotiate: mining and compulsory acquisitions.

Step 4: the Wik decision

Then in late 1996, the Wik Peoples from the west side of Cape York Peninsula came to Canberra to the High Court for the first round in what looks like being a very long legal fight to have their rights recognised. And as you could tell by Gladys Tybingoompa s dance outside the doors of the High Court, they had a points victory in Round One.

It's important to remember that the Wik did not get their native title in the decision which came down on 23 December last year. That case was about the Qld Government and others trying to head off any chance of the Wik getting their day in court to argue in support of their native title over large parts of their claim. What the Wik got out of that decision was the chance to fight another day for coexistence.

What the High Court was doing in Wik was working out what Mabo means; how do we square the rights of people who lawfully got title to land under a Crown grant with those who were there first and who have maintained a connection to the land, which the law also recognises.

The High Court was asked to look at 2 pastoral leases. The first was 535 square miles. That's more than half of the whole ACT. But for a handful of years early this century when it was a pastoral lease in name only, it was Aboriginal land before and Aboriginal land since.

The question for the High Court was whether the stroke of the pen in Brisbane 80 years ago - when the Governor signed the lease - was enough to bring to an end a complex system of land law which had survived for hundreds and presumably 1000s of years.

The other lease before the Court was a current pastoral operation not an expired grant like the one I've just discussed. It was twice the size ­ 2830 square kilometres, a carrying capacity of one cow every 60 acres. The Wik didn't try to dispute the rights of the pastoralist or turn them off the land because native title law doesn't let them. They conceded the pastoralists' rights would take precedence over their own. What they wanted was a legal recognition they could coexist. The High Court was asked by the other side to say that one pastoralist and a herd of cattle needed exclusive possession of an area bigger than the ACT in order to give legal effect to their grant. And the majority of HC judges simply said no ­ the lease didn't say it granted exclusive possession and, with that vast area and the low intensity of the activity - grazing cattle - there was no need to imply that it did and in the process extinguish the property rights of the Wik People.

Instead the High Court confirmed the pastoralists have all the rights given to them under the law to carry on their pastoral activities.

After all those rights are exhausted, there's legal room for the rights of the Wik to co-exist on the same land. If there is any potential conflict between the legal rights of the pastoralist and the legal rights of the indigenous landholders then one side prevails every time : the pastoralist.

It was a legal recipe for co-existence, the kind of co-existence it has to be said which in a practical way has been occurring on some pastoral land in various areas around the country for the last 150 years.

Now understandably farmers and their families were uncertain about what Wik meant. There was some legal argument about this. Some said the RDA and/or the NTA made it problematic whether eg they could excavate a dam to water their herds. The National Indigenous Working Group said their best legal advice was the High Court decision posed no threat to the full range of legal rights granted to pastoralists under their leases. But they said regardless they would support a law which confirmed the existing rights of pastoralists and confirmed that they prevail over any conflicting native title rights.

The Government however in the aftermath of the Wik decision decided to take a different path. Which brings us to Step 5: the amendments currently before Parliament.

The Amendment Bill is 340 pages long. It deals with the Wik decision and pastoral leases but it also goes well beyond the Wik decision. It's very complex and it would be impossible to even summarise its main features here. So I'll be very general.

Basically the Govt has taken the past acts regime and stretched it another 2 years forward into what we all understood until now was the future act regime. So the States who after 1994 took a punt on Wik, ignored the future act regime and granted all sorts of titles over mainly pastoral lease land are now to be rewarded with another round of retrospective validation - these "intermediate period" acts will be validated and if extinguishment happened in defiance of the new rules of the game - bad luck.

As to the future act regime, there is a series of really major changes - the basic thrust is to take the 6 categories which allow you to do things on native title land and expand them to 12. So instead of the freehold test and the right to negotiate standing there as the dominant paths to validity, they become categories 11 and 12 only to be endured if you can't get in under the first 10.

There are lots of apparent winners in this Bill. For example:

• State &Territory Governments who get extensive powers to intervene and override the right to negotiate process, who get the opportunity to displace the National Native Title Tribunal with State bodies which can operate subject to less rigorous standards, and who are rewarded with validation for ignoring the Native Title Act between 1994 and 1996
• Pastoralists who stand ready to gain from State governments a whole new raft of additional rights at the expense of native title holders and the taxpayer.
• Miners who will see State Governments authorised to replace the right to negotiate on pastoral leases with inferior State processes.
• Private developers of infrastructure who will be able to generate private profit from native title land without having to engage in the right to negotiate process with the indigenous landowners.
• Private water users, gravel merchants, and the Coalition backbench who get their ridiculous sunset clause - all winners under the Bill.

The main losers are obvious - the indigenous people who so recently had their property rights affirmed by the white system of law and are now seeing them put back into a discriminatory second class category. The other big losers are the taxpayers footing the compensation bill. And of course the whole country loses because Mabo and Wik are a recipe for coexistence - a once in a lifetime political opportunity for us to start getting it right. Those decisions show great wisdom, wisdom which was earned the hard way overseas and which we have the opportunity to learn from and turn to our advantage.

The time has come to turn the debate around and return to what the High Court actually said in Wik. Just as the High Court's Mabo decision showed Parliament the way, as Senator Harradine told the Senate in 1993, so the Wik decision has once more pointed the country in a positive direction - coexistence between indigenous and non-indigenous people, sharing the land.

The Parliament's amendments to the Native Title Act must work with the High Court's decision - not against it. Otherwise everyone will end up in court again. It is little wonder that questions about constitutionality and legal uncertainty continue to dog the Bill - the common law courts have always jealously protected property rights and the idea of legislated discrimination is repugnant in the modern era. The Amendment Bill will make bad law if it is passed. Race-based fights will dominate the courts, and we will be internationally shamed. What the Government should be doing is promoting the negotiation of coexistence solutions which will stand the test of time.

The amendments regarding Indigenous Land Use Agreements (ILUAs) are a hint of where the legislation should be heading. But negotiations only occur in a climate of mutual respect for legal rights. Extensive dismantling of the right to negotiate, and permitting pastoralists to ratchet up to the full array of primary production activities without reference to indigenous people with interests in the same land, are just two examples of the manner in which the indigenous bargaining position is being beaten down by legislation. The positive potential of ILUAs will be nullified unless large parts of the Amendment Bill are rejected.

There is only long term certainty solution going - not extinguishment but negotiation and coexistence.

Sean Brennan