Indigenous Law Bulletin
The response of the Commonwealth, State and Territory governments [to] the High Court's decision in The Wik Peoples v The State of Queensland, is possibly the most important human rights issue to face the country since federation. Some political leaders have made false or exaggerated claims about the effect of native title on pastoral activities. They have advocated legislation to dispossess Indigenous people of their rights on the grounds of providing 'certainty' and facilitating 'proper land management'. Such proposals are inherently discriminatory and profoundly racist. They will breach Australia's international obligations and the Commonwealth government's commitment to respect the principles of the Racial Discrimination Act [1975 (Cth)]. If adopted, they will create divisions and hostilities which will never be forgotten and will permanently scar this country.
The issues arising from native title are far from unique. The United States of America recognises Indigenous rights. On the highly prospective reservation lands of the South West of that country, mining companies, including Australian companies, negotiate access on an equal basis with Indian nations. In Canada, the law has recognised the co-existence of Indigenous and non-Indigenous rights to land-those rights are protected in that country's constitution. In New Zealand, the Government is coming to terms with its responsibilities under the Treaty of Waitangi in a way that treats seriously the solemn commitments made by an earlier generation.
If Australia sees a solution to conflicts between Indigenous and non-Indigenous interests as simply a case of extinguishing the former, this would be contrary to the approach by our common law cousins in North America and New Zealand.
The native title rights of Indigenous Australians are sourced in the common law's recognition of Indigenous laws and custom. These are distinct from rights sourced in Crown grants and otherwise created by Parliaments. The principle of non-discrimination requires that all rights are equally recognised and respected according to their different terms. The property rights of Indigenous Australians must be recognised as fully as the property rights of other Australians.
Aboriginal negotiations with the Commonwealth Government will rest on the following principles.
1. The Commonwealth adopt a non-discriminatory policy in dealing with the property rights of all Australians.
2. There must be no extinguishment or impairment of native title.
3. There must be no implied or direct amendment to the Racial Discrimination Act 1975 or deviation from its principles.
4. The Commonwealth must respect the native title decisions of the High Court of Australia.
5. There must be no amendments to the Native Title Act 1993 [(Cth)] which erode existing Indigenous rights, particularly in relation to the right to negotiate and the effective extinguishment or impairment of native title rights by the expansion or conversion of pastoral interests.
6. There must be no amendments to erode the Indigenous Land Fund, its functions and its focus.
7. The Commonwealth agree to a process for negotiations with Indigenous people over:
the proposed amendments to the Native Title Act 1993; and
the consequences of the Wik decision.
Aboriginal and Torres Strait Islander Commission
Aboriginal Legal Rights Movement Inc
Aboriginal Legal Service of Western Australia
Cape York Land Council
Central Land Council
Central Queensland Land Council
FAIRA Aboriginal Corporation
Goldfields Land Council
Goolburri Land Council
Gurang Land Council
Indigenous Land Corporation
Kimberley Land Council
Mirimbiak Nations Aboriginal Corporation
National Aboriginal and Islander Legal Services Secretariat
New South Wales Aboriginal Land Council
Noongar Land Council
North Queensland Land Council Aboriginal Corporation
North Western Queensland Land Council
Northern Land Council
Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner
Pilbara Land Council
Tasmanian Aboriginal Centre
Torres Strait Regional Authority
Western Desert Puntukumupama Aboriginal Corporation
Yamatji Bama Baba Maaja Aboriginal Corporation