National Indigenous Working Group on Native Title --- "Co - existence - Negotiation and Certainty (Preface and Executive Summary)" [1997] IndigLawB 45; (1997) 4(2) Indigenous Law Bulletin 10

• Co-Existence-Negotiation And Certainty (Preface And Executive Summary)
• Indigenous Position In Response To The Wik Decision And The Government's Proposed Amendments To The Native Title Act 1993
• Preface
• Executive Summary

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Co-existence - Negotiation and Certainty (Preface and Executive Summary)

Indigenous position in response to the Wik decision and the government's proposed amendments to the Native Title Act 1993

Prepared by the National Indigenous Working Group on Native Title

Preface

The National Indigenous Working Group on Native Title (NIWG) developed from a series of workshops on native title. These brought together Native Title Representative Bodies, the Aboriginal and Torres Strait Islander Commission, the Indigenous Land Corporation, the Aboriginal and Torres Strait Islander Social Justice Commissioner and the National Aboriginal and Islander Legal Services Secretariat.

The first workshop in Sydney in April 1996 appointed the NIWG to represent the wider group, with the mandate to develop a position on proposed amendments to the Native Title Act (NTA) and present this to government.

During 1996, members of the NIWG attended meetings with industry groups convened by the Council for Aboriginal Reconciliation to seek an agreed position on the government's proposed amendments to the NTA. Unfortunately, no agreement was reached.

So far in 1997, two workshops involving the broader group of indigenous stakeholders has provided the NIWG with community input and direction not only on proposed amendments to the NTA but also on preparing a response to the High Court's Wik decision.

This position paper, 'Coexistence-Negotiation and Certainty', represents the extensive consultations and negotiations that have occurred with indigenous people throughout the country.

Members of the NIWG are drawn from the following organisations:

National

Aboriginal and Torres Strait Islander Commission

Indigenous Land Corporation

Aboriginal and Torres Strait Islander Social Justice

Commissioner

National Aboriginal and Islander Legal Services

Secretariat Council for Aboriginal Reconciliation

Queensland

Foundation for Aboriginal and Islander

Research Action Cape York Land Council

New South Wales

New South Wales Aboriginal Land Council

Victoria

Mirimbiak Nations Aboriginal Corporation

South Australia

Aboriginal Legal Rights Movement

Western Australia

Aboriginal Legal Service of WA

Kimberley Land Council

Goldfields Land Council

Northern Territory

Central Land Council

Northern Land Council

Executive Summary

The Government proposes many amendments to the Native Title Act which should be negotiated with the National Indigenous Working Group on Native Title.

The Indigenous position addresses proposals both for a legislative response to Wik and the Government's amendments to the Native Title Act.

The National Indigenous Working Group negotiation position is based on these key principles:

• Respect for property rights of all titleholders on a non-discriminatory basis.
• The principles of non-discrimination, as set out in the Racial Discrimination Act 1975, must be respected.
• No extinguishment of native title without informed consent of native titleholders.
• Continuing protection of native title under the Native Title Act.
• No de facto extinguishment of native title by:

•	unreasonable threshold test for the acceptance of claims
•	minimisation of native title rights through codification
•	'physical connection' tests
•	imposition of sunset clauses on claims
•	precluding towns, cities and waterways from claims or the right to negotiate process.

• Native titleholders have a right to negotiate over development on native title land.
• The NIWG believes that Indigenous people must have the right to negotiate changes which affect their fundamental legal rights.

• Coexistence of rights on pastoral leases.

The Indigenous position recognises the legitimate rights of all parties and confirms the rights of pastoralists and native titleholders. Coexistence issues can be best resolved by negotiated agreements. The proposal to broaden permitted land uses on pastoral leases under a definition of primary production will effectively upgrade leases while blocking and extinguishing native title.

• Amendments to the Native Title Act.

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Threshold Test: The NIWG agrees that native title claimants should have to make out a reasonable case before accessing the Right to Negotiate, but the Government's proposed test is too extreme.

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Right to negotiate: The right to negotiate enables Indigenous peoples to protect their culture, and participate in development and economic activity. The Government proposes to severely limit this right and in some cases, remove it altogether, such as for mining lease renewals. The NIWG opposes amendments that propose unreasonable Ministerial intervention and powers, exclusion of spiritual attachment in assessing interference of developments in community life and shortening negotiating times. The NIWG also wants the Government to proceed with its earlier proposal that profit sharing arrangements not be excluded from arbitral determinations.

• Agreements.

The NIWG has developed a model which is flexible, simple and efficient for negotiating regional and site-specific agreements and which provides certainty for all parties.

• Indigenous Representative Bodies

The NIWG is proposing enhanced recognition of and functions for Representative Bodies by providing statutory mandatory functions for them under the Native Title Act. The Government's amendments won't adequately address the problem of multiple claims being lodged. The Government proposal for a process of re-recognition of Representative Bodies will also cause problems and uncertainty. The proposed functions of Representative Bodies will not achieve good outcomes. The NIWG supports accountability of Representative Bodies, but the further accountability requirements the Government wants to impose will be oppressive and unproductive. The current system is workable and already meets general standards of accountability. Proper accountability is best achieved by making Representative Bodies fully answerable to their constituents.

• Validation of Mining and Other Interests

The NIWG rejects blanket validation of potentially invalid interests granted in land since 1 January 1994. This would reward flagrant breaches of the law by some Governments. The NIWG will be prepared to discuss with the Government the categories of grant to be validated and the mechanisms to ensure that native title parties are treated fairly and expeditiously in respect of compensation should such validation proceed.

• Indigenous Economic Empowerment Package

Native Title rights are the key to addressing the economic disparity between Indigenous and non-indigenous Australians which will otherwise widen significantly in the next decade. The NIWG has developed an economic package to establish a capital base to enable Indigenous participation in development and investment on native title lands. Such an economic package cannot be seen as any form of compensation for loss or impairment of native title rights.

• Recognition of Native Title on Aboriginal Reserves and Leases

Procedures for recognising native title on land already set aside for Aboriginal use should be streamlined. The new system will be cheaper and provide for compensation for non-Indigenous interests.

• Heritage Protection and Native Title

Heritage protection laws are vital for the protection of native title rights. The NIWG wants a national model for heritage protection with criteria for minimum standards for complementary State standards as recommended in the Evatt Report on the review of Commonwealth Aboriginal heritage protection legislation.