(The Native Title battle did not end with the Howard Ten Point Plan and the Harradine amendments.  This article, prepared by solicitors Peter Seidel  and James Fitzgerald, suggests some useful directions for lobbying the various State governments.

Peter and James are solicitors working with Arnold Bloch Leibler. Both have a substantial track record working for indigenous groups on Native Title claims.    If you would like to be put in touch with the authors, please email me. - Rod Hagen )

17 AUGUST 1998


As a result of a compromise between Senator Brian Harradine and the federal Coalition Government, the Commonwealth Native Title Amendment Bill was passed by the Senate on 7 July 1998.

The amended Commonwealth Native Title Act ("NTA") will automatically affect surviving native title, and the ability of native title holders to secure recognition and protection of their interests, in a variety of adverse ways. Little can be done about these automatic effects unless and until there is a change of federal government.

The NTA also provides to the states and territories wide discretions:

The battle to save surviving native title has now moved from Canberra to each state and territory.

Most states and territories have advanced strategies to use their newly granted discretions. Western Australia and the Northern Territory are likely to exercise their discretions to the greatest possible detriment of native title holders. The members of the Western Australian Upper House need to be made aware of the unfairness of the Court Government's proposed course of action, and must be encouraged to make a principled stand on the issue.

In Queensland, the Beattie Labor Government has taken a modified approach to its proposed native title management regime. The Government intends to pass a law which will give full effect to the validation and "confirmation of extinguishment" parts of the NTA within the next two weeks, whilst negotiating the balance of "future act" (right to negotiate etc.) issues with the stakeholders, including native title interests, miners and pastoralists.

There is still time for people who care to influence the way in which state governments, and particularly the New South Wales, Victorian, Queensland, South Australian and Tasmanian Governments, exercise their powers to deal with native title.

First, State Governments need to be persuaded against giving full effect to the validation and "confirmation" parts of the NTA. This is a matter of urgency. Secondly, of the current negotiations about the exercise of the states' powers to erode the right to negotiate, each Government needs to be encouraged not to follow the Howard Government's approach of accommodating all of the desires of pastoral and mining interests at native title holders' expense.

The Queensland Validation and "Confirmation" Bill - lessons for the battle

The native title bill currently before the Queensland Parliament will:

The effect of validation is that native title holders will not have any say in the potentially thousands of interests granted since 1994 affecting native title where the right to negotiate or other procedural rights should have applied.

The "confirmation" provisions will cause the permanent extinguishment of native title over vast areas of Queensland. The Queensland Government intends to adopt in full the NTA's imprecisely drafted Schedule of extinguishing interests, which includes non-exclusive land tenures where native title may otherwise have survived, like grazing homestead perpetual leases. Similarly vague and imprecise schedules exist for each of the other States, and the Northern Territory.

In Queensland, for example, grazing homestead perpetual leases are a common form of land tenure covering a large area of Central and Southern Queensland. They vary in size from a few hundred hectares to over 200,000 hectares each. Their conditions are in many respects comparable to the pastoral leases which the High Court found could accommodate coexisting native title in Wik. The Howard Government, and now the Beattie Government, are prepared to assure by legislation the extinguishment of native title wherever there has ever been one of these leases, past or present, before the courts have an opportunity to consider them.

While it is true that the Beattie Government relies on the vote of an independent member of Parliament (Wellington), no good reason of public policy has been offered by the Government for its proposed course of action.

It can be assumed that similar validation and extinguishment provisions are contemplated by the remaining State and Territory Governments. No good public policy reason exists for such a course of action.

Future Acts Regime Negotiations

Premier Beattie has acknowledged that the validation and confirmation bill will have a detrimental effect on native title, and has indicated that he will take those effects into account in the formulation of the state's future acts regime.

Even so, the Queensland Government proposes to replace the right to negotiate with less favourable rights over areas covered by non-exclusive pastoral leases and agricultural leases. Again, no reason has been offered why it is necessary to further dismantle the right to negotiate. The Government's proposed actions demand an explanation, especially when the substantial gains already made by pastoral and mining interests under the NTA are taken into account.  Pressure must also be brought to bear to ensure that similar proposals are avoided in the other States.

State Premiers must be urged not to concede further ground to pastoral and mining interests without the agreement of native title holders. The reputation and dignity of all Australians depends on it.

Peter Seidel
James Fitzgerald

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