[This paper was prepared by a working group comprising representatives of Victorian indigenous communities for discussions with the Vormer Victorian premier , Jeff Kennett. The Premier met with the group this morning (1st October,1998) and rejected the indigenous peoples' proposals. He indicated that he proposed "confirming" and "validating" those acts extinguishing native title to the full extent available in the NTAA. Legislation was introduced into the Victorian Parliament but had not been passed when the Kennett government fell. -- R Hagen]
The decision in Mabo, reiterated in Wik, reflects the critical importance of native title rights and interests for Aboriginal communities. Native title represents a recognition by the common law of Aboriginal peoples' spiritual, physical and cultural relationship to country, continuing from the creation time. Even so, only some areas of Aboriginal peoples' country now remains open to those non Aboriginal processes which enable such recognition. It must not be forgotten that such recognition by the common law represents only a fraction of the unique connections to country we, as a distinct peoples, have always had and will always continue to have.
The Commonwealth Native Title Amendment Act 1998 (NTAA) includes provisions in Divisions 2A and 2B allowing the States and Territories to confirm and validate respectively the extinguishing effect on native title of certain acts they have done on or before 23 December 1996. It is in the form of an option available to the States and Territories. They may or may not exercise it.
The attached position paper, presented with the solid and unified support of all Victorian Aboriginal Communities, highlights the concerns, uncertainties and real risks associated with Victoria accepting the Commonwealth's invitation to confirm and validate, to the fullest extent available to it, the effect of those pre 23 December 1996 acts.
A workable, effective and low risk alternative to the Commonwealth's invitation is suggested, based on the assumption that Victoria does propose to confirm the common law. We are firmly of the view that whilst the concept may be viable in the future, the introduction of scheduled interests is premature prior to Federal Court determinations of valid or validated grants at common law. Victoria should wait until at least the determination in the Yorta Yorta application is made before it decides how to first exercise its option. The wait will not be long. Additionally, any legislative validation of post 1 January 1994 acts should include the full involvement of Victorian Aboriginal communities in decisions that may affect their native title, and should also include the principle of non extinguishment of native title.
We have posed a number of questions, some of which are set out below, the answers to which will enable us to better understand how Victoria views the Commonwealth's invitation. We have also raised matters of concern to all Victorians to encourage the Government to consult with Victorian indigenous communities, and to enable us to work, as partners, at overcoming those concerns in a way satisfactory for all of us.
Does the Victorian Government, by legislation, propose to confirm the common law, or extinguish native title? If the Government proposes merely to confirm the common law, it is essential that its legislation accurately reflects the common law, and it allows such legislation to develop over time as native title determinations are made in Victoria. The alternative, legislating now to the full extent allowed by the NTAA, is fraught with risks, concerns and costs.
Competing submissions in the Yorta Yorta application attest to the fact that there are many types of leases, and other tenures, contained within Division 2B of the NTAA, in which it cannot be said with any degree of certainty that there was, using the Wik and Mabo principle, a "clear and plain intention" on the part of the legislature to extinguish native title rights and interests. The Yorta Yorta application covers only a small part of lands and waters subject to native title in Victoria. The Munatunga Elders and Wilson's Promontory applications clearly highlight the fact that these issues arise throughout Victoria. Consequently, the risk associated with the Commonwealth getting Division 2B wrong is great. If the Commonwealth is wrong, it is Victoria that will bear the compensatory burden if it enacts legislation equivalent to Division 2B.
Any equivalent legislation to Division 2B also raises real constitutional invalidity risks for Victoria associated with the vague extinguishment and notification scheme in the NTAA, and associated with possible breaches of the Racial Discrimination Act.
It is of fundamental concern to Victorian Aboriginal communities that any Victorian legislation, equivalent to Division 2B, may well be the cause of permanent extinguishment of native title over vast areas of the State. There is no justification on public policy grounds for such an arbitrary deprivation of critical property rights, integral to Aboriginal culture. A related concern is whether it is Victoria's intention, in enacting mirror legislation, to codify the common law but to pay compensation if it has got it wrong? If that is the intention then it is a dangerous one. If Victorian enacts mirror legislation in a context where native title is not extinguished for all time at common law, then compensation, on "just terms", must be paid. Such compensation must take into account the value of loss to native title holders on just terms, not on any freehold cap terms. The quantum of such loss is yet to be determined within Australia.
For us, talk of compensation begs the question. Any decision by Victoria to take the compensatory risk would highlight another concern, being the State's misunderstanding of the value each Victorian Aboriginal community places on continuing connections to country. Payment of money can never compensate Aboriginal peoples for statutory extinguishment of native title to their homelands. Native title that has survived since time immemorial.
Awaiting the Yorta Yorta decision also makes sense from an economic and a practical perspective. By enacting complementary legislation to the fullest extent available to it, the State will then be extending, by some time, the duration of the Yorta Yorta application, resulting in further costs associated with more Court time spent arguing the effect of new State provisions.
As with the confirmation provisions the State of Victoria may validate all, any or no acts that took place in Victoria between 1 January 1994 and 23 December 1996, known as intermediate period acts. It is under no obligation to so validate. It has an option. Does the Victorian Government propose to validate grants of interests in land or waters made between the commencement of the Native Title Act 1993 on 1 January 1994 and the date of the Wik decision on 23 December 1996?
If Victoria is prepared to validate as invited by the Commonwealth, the effect is that native title holders will not have any say, or procedural rights, in the potentially large amount of interests granted over lands subject to their native title rights between 1 January 1994 and 23 December 1996. The State will then be rewarded for breaches of the law. Such a scheme will place the Government at risk of paying significant compensation for permanently extinguishing native title. This cannot be fair when Victoria is a State in which the so called "uncertainty" associated with surviving native title on pastoral leases, used elsewhere in Australia to justify ignoring the provisions of the Native Title Act 1993 during this period, does not exist. There are no pastoral leases in Victoria.
We believe the fair thing to do is to insert measures at the State level to ensure retrospective validation of such acts, including notice to native title holders; fast track compensation entitlements; an appropriate negotiation period; and the application of the non-extinguishment principle to all validated acts.
The principle of co-existence in Wik, in which native title rights and interests must yield to the rights of grantees wherever there is an inconsistency, means there is simply no problem that needs to be fixed in Victoria. It is the Commonwealth that says there is such a problem and in so saying has invited the Victorian Government to fix it using a risky, costly and flawed scheme, without finally agreeing to shoulder 75% of the compensatory burden at the national level.
The responsible, efficient and cost effective position for the State to take is to enact provisions, and build its schedule, according to the common law, without pre-empting the common law. Victorian Aboriginal communities must be fully involved in all aspects of any validation scheme, for post 1 January 1994 acts, and the non extinguishment principle must apply.
Such a position will confirm Victoria's commitment to the principles in the Racial Discrimination Act, particularly its commitment to deal with Aboriginal peoples' property rights in the same way it deals with all other property rights. Such a position will enjoy our full support.
We recognise the importance of land to all Australians. As Aboriginal peoples we enjoy a unique relationship with country. We can trace our families and society's history, heritage and spirituality through our involvement and connection with the land.
"My mother was born here." "My grandfather used the fish traps in Kerrup Tjmara country to feed my family."
"My great grandmother was riding on her mother's back across this piece of land when she first saw a white person."