Farley, Rick --- "Book Review - Native Title Report, July 1995-June 1996" [1997] AboriginalLawB 8; (1997) 3(88) Aboriginal Law Bulletin 17

• Book Review Native Title Report July 1995-June 1996

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Book Review

Native Title Report
July 1995-June 1996

by the Aboriginal and Torres Strait Islander Social Justice Commissioner

Australian Government Publishing Service

Reviewed by Rick Farley

There is more than a touch of thundery gloom about the Native Title Report July 1995 June 1996 of the Aboriginal and Torres Strait Islander Social Justice Commissioner. Mick Dodson argues that the Government's proposed amendments to the Native Title Act 1993 (Cth) ('the NTA') are an attack on Indigenous rights, and display a 'profound reluctance, perhaps inability, to accept native title for what it is.

He uses the story of a senior old man's response to news of the Mabo decision-different story, same ending-to background his attitude to the Government's position.

It is easy to understand why he may be frustrated. Mr Dodson s problem is that he sees a far broader agenda for the native title debate than the Government. In his view, the Act is a framework agreement for a social contract between Indigenous peoples and others. 'It is a matter of social dynamics' he says. 'The NTA is essentially about interaction between Indigenous and non-Indigenous Australians'.

But the Government does not have such a wide approach to the matter. It believes certainty in land dealings is of paramount importance, and is achieved best by reducing or constricting existing Indigenous rights under the NTA. That is the fundamental difference between Mick Dodson and the Government-one is looking up to the sky, and the other is looking down at the ground.

Given the Government's majority, it is hard to escape the conclusion that there will continue to be a huge gap between Mr Dodson's aspirations for the Act and those of the Government. According to a survey of Federal election candidates by three universities, 72% of Coalition candidates believe Aboriginal land rights have gone too far, compared to 6% of ALP candidates.

However, he poses some important questions for the Government. Some of them will have to be addressed, if for no other reason than that the issues aren't going to go away, and there will be increasing international focus on Australia's human rights record with Indigenous peoples, particularly in the lead-up to the 2000 Olympics.

From his wide perspective, Mr Dodson argues that if reconciliation is to be achieved at all, it must start with land and with respect for Indigenous rights to land. He says the best foundation for enduring certainty regarding land use lies in agreements, and that failure to recognise this is one of the deepest flaws in the Government's approach to the NTA.

He then points to a fact I believe is not widely understood within the Government-the Preamble to the Act acknowledges that:

'The High Court has ... held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous [sic] inhabitants of Australia, in accordance with their laws and customs, to their traditional lands'.

The common law recognised Indigenous law in the Mabo [No. 2] (Mabo v Queensland [No. 2][1992] HCA 23; (1992) 175 CLR 1) judgment. This is the point that Noel Pearson has made - Captain Cook brought the common law with him; it is whitefella law which has recognised the existence and continued application of blackfella law. Indigenous native title rights now are embedded in the common law, and those rights are protected by the Racial Discrimination Act 1975 (Cth).

The report builds the proposition that common law recognition that native title rights are defined by Indigenous laws and customs means that they should not be treated the same way as other titles. That is where Mr Dodson is on a collision course with the Government:

'A further generic or thematic element of the Government's approach ... is the insistence that any native title right or interest which is unknown to other common law titles must be a gift of government, which can be reduced or removed by government at will'.

He makes his views on the amendments very clear:

'The operational efficiency of an Act designed to recognise and protect native title is considered almost exclusively from the perspective of other property owners.'

And again:

'The primary concern is not the function of the right [to negotiate] in protecting the unique and vulnerable nature of native interests, but its potential to act "as a brake on mineral exploration and mining activity" '.

Mr Dodson focuses on amendments in relation to pastoral leases and the right to negotiate to illustrate his case. On any reading, the amendments would increase the rights of pastoralists and reduce the rights of any native title holders. I was the Executive Director of the National Farmers' Federation when the Act was negotiated, and know that Aboriginal people made a very significant concession to pastoralists. As part of the negotiations, it was agreed that pastoral leases should be renewed automatically on the same terms and conditions which currently exist, without any right to negotiate by native title claimants. That facility still is not available to the mining industry. I do not think Aboriginal people will accept easily that the already big concession to pastoralists should be extended further.

For their part at the time, the National Farmers' Federation agreed in return that pastoral leases purchased commercially by Aboriginal interests should be able to be converted to a form of native title. However, events have superseded Mr Dodson's initial concerns on the pastoral lease amendments.

Debate on the package of amendments to the NTA has been delayed, and probably won't get to the final Senate stages until April 1997 at the earliest. In the meantime, the High Court will bring down its decision in the Wik case. That decision will clarify some issues, at least in regard to pastoral leases which have no existing reservations of Indigenous interest. It is unlikely that the Court will clarify all possible issues. Whatever the decision, the Government will have to review the pastoral lease amendments, and changes are likely. (One of the few areas of agreement from the Parliamentary Joint Committee on Native Title was that the pastoral lease issues should not be considered at this time.)

The Social Justice Commissioner also has a significant problem with the cascading effect of the proposed changes to the right to negotiate. He points to the requirement to obtain endorsement from a representative body; a higher registration test; potential strike out proceedings in the Federal Court; and a three month time limit to pass the registration test. He then concludes:

'If the impact of all these proceedings is considered from the perspective of native title claimants, the drain on their human and financial resources, the proposals must be seen to be unworkable. They severely curtail the effectiveness of the right to negotiate, quite apart from those Government proposals which would severely limit or remove that right'.

However, Mr Dodson does agree with some Government amendments, such as:

• increased responsibilities for Native Title Representative Bodies (providing their resources also are increased);
• recognition of Indigenous Land Use Agreements (although he argues that they should be signed off by a representative body); and
• the need to improve mediation processes (although warning that the key problem inherent in the mediation process is its vulnerability to power imbalances between the parties).

Well, where to from here?

Mr Dodson, other Indigenous bodies, the Federal Opposition, the Democrats and the Greens will argue that the current amendments are inconsistent with the Racial Discrimination Act 1975 (Cth). The positions taken by Senators Harradine and Colston will be critical, although the odds are they are more likely to side with the Opposition. If that turns out to be the case, then some negotiations no doubt will occur in the Senate. It would appear that only those amendments which are supported both by industry and Indigenous representatives will pass the Senate easily. (The different interests were brought together by the Council for Aboriginal Reconciliation during 1996, and some good communication channels were opened. They will be used again.)

Whatever the eventual outcome, some realities remain:

• the Government has very little sympathy for a broad Aboriginal agenda;
• therefore, the focus is likely to shift to the courts.

Whatever the form of the NTA, it remains open to Indigenous peoples to test their common law rights;

• there is a range of other legal mechanisms created by Commonwealth and State legislation by which Indigenous peoples can assert and protect their interests in land;
• industry is light years ahead of government in recognising that agreements should be the preferred first option to resolve native title claims, and probably can advocate such an approach more effectively to the Government than Indigenous interests.

In the last analysis, the Indigenous land agenda simply won't go away. If Australia is ever to become a harmonious society, and escape the racial divisions which exist almost everywhere else in the world, the Aboriginal land agenda must be accommodated. The Social Justice Commissioner's Report on Native Title pleads for understanding of that fact. But one senses Mr Dodson isn't holding his breath.