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Nettheim, Garth --- "Responding to Wik: First, Define the Problem" [1997] IndigLawB 32; (1997) 4(1) Indigenous Law Bulletin 14

Responding to Wik: First, Define the Problem

By Garth Nettheim

The historical evidence[1] is that during the early years of Australia's colonisation, the British Government insisted that pastoral leases should not cut across the rights of Aboriginal peoples. Indeed, in over half the continent--Western Australia, South Australia and the Northern Territory--this policy is written into statute law, and pastoral leases expressly recognise the right of Aboriginal people to have access to the land.[2]

The judgments in Wik Peoples v State of Queensland & Ors[3] indicate how the notion of the `pastoral lease' developed as a very specific response to the unauthorised movement of squatters, with their herds and flocks, onto back country beyond the limits of the early settlements.[4] Indeed, the majority held that the Queensland pastoral leases in question did not grant `exclusive possession' to squatters so as to be inconsistent with the continued existence of native title. (A grant of exclusive possession would have extinguished native title.) However, any inconsistencies in land use between Aborigines and squatters would be resolved in favour of the pastoral lease, so that native title rights and interests would have to `fit around the edges' of pastoralists' rights.

Australian Surveying and Land Information Group (AUSLIG) figures as at 1994 indicate that some 42% of Australia is covered by leases, mostly pastoral leases.[5] The decision, therefore, has thrown up some problems which may affect substantial parts of Australia's land mass. What are these problems?

The problem of post-1993 grants

Any post-1993 acts by governments, such as grants of interests in land, which are not subsumed under the extended definition of `past acts' in the Native Title Act 1993 (Cth) (`the NTA') are, if they affect native title, `future acts', which are permissible only to the extent that they would be permissible in relation to freehold title, or if they come within the definition of `low impact future acts' (s234), or are covered by an agreement under s21 (see s235). In addition, future acts in relation to mining and some compulsory acquisitions attract the `right to negotiate' processes (s26), which are set in train by the issue of s29 notices. Future acts may be valid if there is no response within 2 months to a non-claimant application (s67).

It appears that some State/Territory governments have issued titles in respect of land since the commencement of the NTA on 1 January 1994, without complying with NTA procedures. The Queensland Minister for Mines and Energy, Mr Tom Gilmore, has stated that 4,600 mining tenures were issued in that State between 1 January 1994 and 23 December 1996, the date of the Wik decision. It also seems that this disregard of the NTA was not confined to pastoral lease lands: the National Native Title Tribunal's Annual Report for 1995/1996 states that, for the year in question, it received 5,114 s29 notices from Western Australia, but only 3 from Queensland.

Miners, naturally, seek validation of these leases. They argue, reasonably enough, that they took those titles in good faith, and that any failure was that of the government. Native title holders, equally reasonably, ask why their interests should be jeopardised by yet another retrospective validation of the interests of others.

A response to this particular problem needs to be negotiated. One possible outcome might be agreement to a conditional legislated validation. The conditions might include:

Problems for pastoralists

The Queensland Minister for Natural Resources, Mr Howard Hobbs, has claimed that `all substantial property development on leasehold land--such as new dams, stockyards, residences, fencing, land clearing and other similar improvements--should not proceed without the consent of the traditional owners'.[6] The advice of the Commonwealth Attorney-General's Legal Practice suggests the same.[7] Legal advice to the National Farmers' Federation also suggests that there are significant question marks over what pastoralists may do.[8]

These concerns arise partly from the high threshold set by Wik majority judges for the extinguishment of native title rights and interests, partly from the very limited specification in legislation and pastoral leases of what pastoralists may actually do, and partly from the perceived need for pastoralists to diversify the range of their economic activities. They also arise from contending arguments as to whether such activities as digging dams are covered by the definition of `past act' in s228 of the NTA so as to be authorised by a valid pastoral lease, even though occurring after the commencement of the NTA. If not, such activities would fall under the `future acts' regime such as to require compliance with NTA processes (see above).

The representative Aboriginal and Torres Strait Islander bodies under the NTA appear to be arguing that pastoralists are entitled to do all things that pastoralists generally do.[9]

These particular concerns might be met by a negotiated minor amendment to the NTA, perhaps commencing with the words `To allay any doubt ... '. The clause could list categories of pastoral activities as coming within the definition of `past act' and to be treated as Category D (thus not extinguishing native title) for the purposes of ss15(1)(d) and 232. Or the amendment might authorise negotiated agreements at State/Territory or regional level, to respond to differing legislation or differing regional circumstances. An alternative approach would be to include standard pastoral activities within the scope of `permissible future acts' in s235.

Anything which enlarges the duration or tenure of pastoral leases, or alters the use of the land, would not be covered and, if there were native title holders, would need to be dealt with as a `future act' under the NTA.

Trade-offs for Indigenous peoples

In regard to both these sets of problems, Indigenous Australians are being asked to ensure the validity, or the validation, of the interests of others. It is not unreasonable that a response to the Wik decision should also provide some immediate benefits to native title holders. As Mr Noel Pearson pointed out at the Wik Summit in Palm Cove, Queensland, in January 1997, the commencement of the NTA on 1 January 1994 delivered immediate benefits to those whose post-1975 grants were validated; but the promised benefits to native title holders, in terms of determinations of native title and compensation, had yet to materialise, and required immense commitment of resources and energy on their behalf.

What might those trade-offs be? There ought to be something more positive than mere amelioration of the present threats of extinguishment of native title and dismantling of the right to negotiate. Representative Aboriginal and Torres Strait Islander bodies will undoubtedly have their own ideas to present.

What is essential is that the response to the Wik decision be other than the usual Australian resort to unilateral legislated solutions. There needs to be negotiation at the national level to devise an overall strategy, which might be supplemented by agreements at regional level.

Conclusion

It is taking many non-Indigenous Australians some time to adjust to the notion that some Indigenous Australians have property rights which attract the protection of Australian law. But an enforced return to the comfortable pre-Mabo or pre-Wik days is not a serious option.

The Wik decision has created some problems for non-Indigenous interests. Some of the amendments to the NTA proposed by the Howard Government during 1996 pose serious problems for native title holders.[10] The negative attitudes of State and Territory governments have been a prime factor in impeding the operation of the NTA in producing agreed determinations of native title.[11]

What is clearly needed now are negotiations among the various `stakeholders' conducted in an atmosphere of constructive goodwill, mutual respect and generosity of spirit.[12] Most Indigenous peoples' representatives and some of the industry groups appear willing to proceed in this fashion.

Regrettably, most of the State and Territory political leaders seem incapable of proceeding in this way when they perceive short-term political advantages in extravagant claims and demands. It is not in the interests of Australia as a whole that their viewpoints should prevail.


[1] See, for example, H Reynolds and J Dalziel, `Aborigines and Pastoral Leases--Imperial and Colonial Policy 1826-1855', [1996] UNSWLawJl 17; (1996) 19 (2) UNSW Law J 315.

[2] Such as the Land Act 1933 (WA) s106(2); Pastoral Land Management and Conservation Act 1989 (SA); Pastoral Land Act 1992 (NT) s38. See generally MAStephenson, `Pastoral Leases and Reservation Clauses' in Mabo: The Native Title Legislation, MAStephenson (ed), UQP, 1995, pp 104-119.

[3] [1994] HCA 24; (1996) 121 ALR 129.

[4] H Reynolds and J Dalziel, `Aborigines and Pastoral Leases--Imperial and Colonial Policy 1826-1855', [1996] UNSWLawJl 17; (1996) 19 (2) UNSW Law J 315.

[5] Australian Land Tenure, Australian Surveying and Land Information Group, Commonwealth of Australia, AUSLIG, Canberra, 1993, Map No. 93/020; H McRae, G Nettheim and L Beacroft, Indigenous Legal Issues: Commentary and Materials (2nd ed), LBCInformation Services, Sydney, 1997, pp 258-260.

[6] Media Release, 8 January 1997.

[7] Legal Implications of the High Court Decision in The Wik Peoples v Queensland. Current Advice', Attorney-General's Legal Practice, 23 January 1997.

[8] For a balanced and informative account of the concerns of pastoralists, see M Love, `Lighting the Wik of Change', Land, Rights, Laws: Issues of Native Title, Issues Paper No. 14, February 1997, Native Titles Issues Unit, Australian Institute of Aboriginal and Torres Strait Islander Affairs, Canberra.

[9] See, for example, J Fitzgerald, `The Wik Peoples v State of Queensland &Ors; The Thayorre Peoples v State of Queensland &Ors. The Meaning of Co-existence', paper presented at the Wik Summit on Pastoral Leases and Native Title, Palm Cove, 21-25 January 1997.

[10] S Beckett, `Workability in Whose Interest? the Native Title Amendment Bill 1996' Vol 3, 84 Aboriginal Law Bulletin 4; Simeon Beckett `But Wait ... There's More! Federal Government Releases More Amendments to the Native Title Act', Vol 3, 87 Aboriginal Law Bulletin 8; ATSIC, Proposed Amendments to the Native Title Act 1993: Issues for Indigenous People, November 1996.

[11] See Native Title Report July 1994-June 1995, Aboriginal and Torres Strait Islander Social Justice Commissioner, AGPS, Canberra, 1995, pp 122-124, 158-162, 191-192.

[12] R Farley, `Wik--the way forward', Land, Rights, Laws: Issues of Native Title, Issues Paper No. 13, February 1997, Native Titles Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Affairs, Canberra.


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