also published as "False assumptions: why Kim Beazley is wrong on Wik" in The Age, 23 March 1998
The Native Title Amendment Bill 1997 will return to the Senate next month with most media and academic opinion against the Government, yet claiming to fear a double dissolution election based on what they have chosen to label, the "race issue".
There is a built-in assumption that the only way to avoid such an election is for the Prime Minister to compromise his Bill. There is of course another way. The Labor party can drop its objections to the Bill and allow it to pass. Kim Beazley could sell this as a magnanimous gesture to save the country from the "race" election, and vow to amend the legislation should he win. That may not entirely kill the debate, but if the Government pursued the Opposition on the matter during a subsequent election it would prove true the allegation that it wanted a race-based election, and it would be penalised electorally.
However, Beazley has already revealed the weakness in the Labor's position on Native Title by making such a feature of the issue at the ALP National Conference. Presumably the aim has been to use the weight of Conference to lock in caucus members.
Queensland Labor leader, Peter Beattie was right when he said that Labor was wearing its heart on its sleeve on this one. Labor has some questions to answer, not to the editorialists, but to the electorate.
1. Does Labor believe, as does former leader Paul Keating, that the Native Title Act 1993 does not have to be amended as a consequence of the High Court's judgement in Wik?
Beazley has stated that regardless of Wik, Labor would have been confronted by the need to amend the Act had it remained in government. The Wik decision introduced the concept of coexistence by deciding that native title could coexist with some forms of leasehold title. This new law required a legislative response to confirm the extent of native title rights on different types of lease.
Labor's view in office was that past valid freehold and leasehold grants extinguished native title. Labor not only said this when it introduced its legislation, and it not only assumed the High Court would confirm this view in Wik, it prayed for that outcome. When Labor spokesman Daryl Melham recently announced that he had always believed that coexistence would occur on pastoral lease, it served to confirm that no-one else on the Labor side did.
The Act was based on the assumption that native title would exist principally on vacant crown land, where there was no significant grant of private rights. The assumption was that the rights of native title holders in relation to such vacant crown land could be significant, and could be equated to ownership of the land. Based on these assumptions the Act provided native title holders with the same protection and the same procedural rights as freeholders, as well as special rights to negotiate in relation to mining and some compulsory acquisitions.
Wik contradicted these assumptions. At one end of the spectrum, native title could approach the rights of full ownership, but at the other end be no more than an entitlement to come onto the land for ceremonial purposes. Native title on pastoral lease is nearer the latter, so the Bill had to put in place a regime which recognised that native title is, in these circumstances a coexisting and subordinate right.
Labor's assertion that native title was a "fundamental legal property right" belies the High Court's view in Wik, that these are a bundle of rights that vary considerably dependent on where and under what circumstances they survive. Labor accepts coexistence, but it does not want to accept that the underlying assumptions that relate to crown land cannot always apply where there are other interests.
2. Should the recipients of a benefit be able to determine the extent of that benefit?
Labor argued that its Act was the result of a deal to give indigenous people, as far as possible what they desired, for instance, the validation of past acts of the grant of land in return for the Land Fund and the right to negotiate (RTN). This deal was struck so that the whole of the Act could be held to be of net benefit to indigenous people, and arguably safe from constitutional challenge.
In Senate hearings on the constitutionality of the Bill, Senator Bolkus had many witnesses agree with his assertion that the only sure way to avoid a challenge was if the Bill was unambiguously beneficial. Further it was suggested that the standard the High Court should use in the determination of beneficial was "indigenous consent". How such consent could ever be gauged is unclear.
In trying to undermine Howard's Bill, which is based on the Race Powers (S.51xxvi) of the Constitution, Labor's assumptions that the High Court will rule that the Commonwealth can only legislate in favour of Aborigines and that the measure of that concept was Aboriginal consent are seriously flawed.
Even if the court accepted the "benefit" line, if a deal by one government is seen as too generous or inappropriate surely the next government has the right and duty, within a very wide discretion to change it. The High Court has already determined that some elements of the Act contain adverse provisions, but still upheld it. The court might apply a test along the lines, "could the Parliament reasonably consider the law to be for the benefit of aboriginal people". This does not require the court to weigh up every provision, but rather to see if the Parliament considered the matter properly.
Beazley has now realised that the court is not likely to decide in the forthcoming Hindmarsh Island case that legislation must be for the benefit of Aboriginal people or that Parliament is not competent to decide this, which is why he is now arguing his stance regardless of the High Court. The question is why?
3. Should rights be available to one race and not others?
Labor has argued that the RTN provisions of the Act were a special measure and applied to one race alone. The Bill allows for the RTN to be retained in relation to mining developments where native title may be equivalent to full ownership, for instance on vacant crown land. However where rights are only coexisting rights, equivalent procedural rights for native title holders are provided. This is an essential difference, rights based on title, not on race.
Beazley argued that the full RTN should be maintained, noting that West Australian freehold and agricultural leasehold have a veto over other forms of economic activity. Is Labor arguing that native title claimants should have RTN powers almost equivalent to freeholders in West Australia, the strongest such powers in the country?
Such a stance is directly contrary to the Wik decision which suggests a continuum of rights, with native title diminishing at it confronts more powerful title. The power of native title in relation to other land holders has to be weighed not just asserted. Gareth Evans has effectively thrown in the towel on this one by hoping that the RTN is a matter of common law entitlement, preferring to leave it to the courts to decide.
4. Should one industry bear the burden of providing an economic base for Aboriginals?
Labor was passionate about native title holders being given the RTN over mining operations. The rationale according to Evans was that the RTN amounted to a "legitimate" form of economic empowerment. The very use of the term legitimate calls into question the truth of this rationale. Why should the mining industry bear the burden of the economic empowerment of indigenous people? This is a cargo cult mentality at its worst.
The realpolitik of the RTN of course is that, in conjunction with an easy test for registration, it places a very large lever in the hands of indigenous claimants. With the flimsiest of evidence claimants can lift the cost to miners of compliance, and can extract rent in the form of royalties, jobs and training from what would otherwise be for them unproductive land. This Robin Hood mentality perhaps more than anything else shows the flaw in Labor's thinking. Why should special rights attach to a title held by one race and be used essentially against one industry? The answer probably lies in the legal reasoning behind the typical negligence action. In those cases the emphasis is not so much on the apportionment of blame, but in chasing the best source of revenue.
The RTN remains a statutory right, not a common law right and its power derives from the nature of the title not the race of the recipient. It is to be seen in relation to other users of the land, which has always allowed for mining developments to create benefits for all by means of the crown ownership of minerals and the levying of royalties on behalf of taxpayers. To allow one group to take their slice is a risky action, to do so with abandon as is the case with the current registration test is asking for trouble.
5. Should beliefs be a part of the registration test of native title claims?
The registration test for claims was always a worry for Labor, which in government was fast coming to the conclusion that the test was too loose. For instance, when the ATSI Social Justice Commissioner Mick Dodson claimed that the test was too tight after the Native Title Tribunal rejected the Waanyi claim (later restored) the Labor government held the line.
The registration test is much firmer in the Bill, and access to various procedures such as the RTN flow from it. It is a condition of the proposed test that at least one of the claim group has or had a traditional physical connection with the claimed area. The Bill also does not allow spiritual matters to prevent the use of the "expedited procedure" for developments, and also attempts to restore the rules of evidence in claims proceedings, which also means that spiritual evidence would be subject to tighter scrutiny.
Do these things amount to an attack on the religious beliefs of indigenous people? No, rather it is a recognition that in a culture with only an oral history tradition, the deliberate fabrication of belief is a real possibility, and must be subject to close scrutiny. For example, in the Hindmarsh Island Inquiry the Royal Commission found that beliefs had been fabricated for the purpose of stopping the bridge.
None of this suggests that belief cannot be used as evidence to reinforce claims of physical connection, but to make it a decisive element would invite derision in the claims process.
6. Why should the time allowed to make native title claims be unlimited?
There was a very strong practical argument put to the Labor Caucus in the negotiations over the 1993 Act, that to impose a time limit on claims would create a large number of bogus claims. Gareth Evans is still using this argument five years later.
The sunset clause in the Bill will not prevent common law native title claims being made, it only prevents the making of native title determination applications after the expiry of the clause. The vast experience of the last five years suggests that land is so important to indigenous people they will not hesitate to make their applications as soon as possible.
Limiting the time for claims in all other areas of the law is common practice. In the case of indigenous land claims it has a much more powerful role. It will signal the end of a phase of readjustment in peoples thinking about land rights, and allow a new phase to begin where indigenous people no longer regard themselves as mendicants, but as citizens with a stake in the nation.
There are elements in the Howard Bill that could well do with further scrutiny when the matter comes before the Senate, especially the conditions under which the states would establish their regimes for managing the process and the integrity of those procedures that allow for Ministerial discretion. However neither of these is a reason to deny the Bill its passage, and until Labor answers the above questions to the satisfaction of the widest possible constituency, it stands accused just as Hewson's Liberals in 1993 of dealing itself out of the debate.
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