Indigenous Law Bulletin
by Paul Burke
One of the memorable images of the whole saga of the Commonwealth’s Native Title Amendment Act 1998 (‘the NTAA’) was newly-elected Premier, Peter Beattie’s, nationally-televised look of horror when the penny finally dropped, during a debate with Senator Minchin, that the States would have to do the dirty work of validation, extinguishment and removing the Right to Negotiate from pastoral leases. Far from being over, it was just the beginning for Premier Beattie and his fragile minority Government that depended on conservative independent, Peter Wellington, for its continued existence.
It was not an auspicious start, when the first legislative act of his Government was to pass validation and confirmation of extinguishment legislation exactly mirroring the Commonwealth's Act. And this in spite of the growing doubts about whether Grazing Homestead Perpetual Leases (‘GHPL’s’), which cover 12% of the State, should, even on the Government's own criteria, have been included in the Schedule of extinguishing tenures. The Queensland Indigenous Working Group (‘the QIWG’), hastily set up by ATSIC and Queensland native title representative bodies to negotiate the proposed legislation with Beattie, obtained a written opinion from Walter Sofronoff QC (who represented the applicants in Wik ). His view was that the case for GHPL’s not granting exclusive possession was even stronger than the pastoral leases in Wik.
Faced with the threat of both independent member Wellington supporting opposition leader Bob Borbidge’s mooted private members' Bill (which would include the GHPL’s in its extinguishing schedule) and the shame of the new Government's first legislative act being defeated, the Premier was in no mood to listen to cautionary arguments about the Queensland Government’s (in)consistency with Federal Labor policy, or possible legal challenges to the legislation on the basis that it was in breach of the Racial Discrimination Act 1975 (Cth). Beattie admitted to indigenous leaders that the Bill had inflicted pain on indigenous people, and he promised to do better for them in the next round of legislation on mineral exploration and mining. The QIWG insisted that the five key elements of the Right to Negotiate apply wherever native title survived including on pastoral leases:
The Queensland Mining Council (‘the QMC’) had other ideas. It argued, in effect, that the compromising had already been done at the Federal level between the Prime Minister and Senator Harradine. The Queensland Government negotiators held separate consultations with the QIWG and QMC and then returned to the bunker until it was time to show the world the result. On 21 October 1998 the Native Title (Queensland) State Provisions Amendment Bill (No.2) 1998 was tabled. It dealt with the following:
The Bill listed ‘low impact’ exploration activities that would be allowed subject to minimal notification and consultation rights under s.26A of the Native Title Amendment Act 1998 (NTAA). While the list seemed to be a genuine attempt to specify low impact acts there are some worrying inclusions such as certain kinds of drilling.
The procedural rights proposed for native tile claimants and holders regarding mining on pastoral leases (and other non-exclusive tenures) were better than the minimum required by the NTAA in the following important respects:
These provisions brought the procedural rights for mining on pastoral leases very close to the level of the Right to Negotiate.
However, procedural rights for mineral exploration on pastoral leases remained at the minimum required by the NTAA. The main problems with this level of procedural protection of rights accorded under the NTAA are: the inadequate time to become a registered claimant (2 months despite the additional requirements of the new more onerous registration test); no obligation to negotiate (only consult) and narrow criteria on which to assess objections.
There is only a small percentage of land that falls into this category. The NTAA allows a State to set up its own version of the new more restrictive Right to Negotiate for this category of land. The Queensland Bill took advantage of this by setting up a scheme mirroring the Right to Negotiate as amended by the NTAA.
The structure of the independent body that is to consider objections under the alternative scheme was not specified as the Government was still finalising its proposal. In the Bill it was simply referred to as ‘the tribunal’.
In essence, the Bill was a compromise: the indigenous side won on mining and the QMC won on mineral exploration. It received support from Peter Wellington, who challenged the opposition to find a better solution, and editorial support from the Courier Mail. The United Graziers Association of Queensland argued that native title holders were getting too many rights. Several chief executive officers of major mining companies in Queensland publicly criticised the Bill, warning of a slowdown in exploration and jobs growth. In response, the QIWG accused the QMC of playing a ‘100 per cent game’ in continuing to oppose the Government's compromise. The Premier also complained of attempts to intimidate him and Peter Wellington.
But the heavy-handed tactics of the mining industry backfired. The Bill was passed on 11 November 1998 with 167 amendments, most of which were either technical corrections or, from the indigenous perspective, minor improvements. Not only did Peter Wellington support it, the other conservative independent MP, Liz Cunningham, did as well!
The key to evaluating the outcome is to realise that most mineral exploration and mining takes place on pastoral leases in Queensland. Thus, the alternative scheme for pastoral leases was always going to be the main game. Evaluating the outcome for exploration versus mining is difficult. On the one hand, mining is more disruptive to native title rights. Yet it does present greater opportunities to negotiate indigenous training, employment and to promote indigenous economic enterprises. On the other hand, native title holders are much more likely to have to deal with mineral exploration than with mining. The statistics on how many prospecting/exploration permits result in a productive mine range from one in one hundred to one in one thousand.
Whether the outcome is something that indigenous interests can live with, as Premier Beattie hopes, remains to be seen. Certainly, in relation to mineral exploration on pastoral leases some of the fundamental problems of the Commonwealth Act have been repeated in the Queensland Act. From a standing start, native title holders with no existing documentation of their traditional connection and facing a queue for the professional services of a representative body (if there is one), will find the two month time limit to become a registered claimant impossible to meet. They will not get a seat at the table. Over time, the situation should improve, as more claimants become registered. But that will depend on the application of the scarce resources of representative bodies.
In the meantime, the minimum native title holders would hope to negotiate is adequate clearance procedures for culturally significant sites. The Government admits that State legislation covering this is inadequate and has promised a thorough review. In the end, the minimal protection of indigenous interests in exploration will depend on the final shape of any new Aboriginal heritage protection legislation arising out of such a review.
Postscript: At the time of writing, the final form of the proposed tribunal to deal with mining and native title was yet to be finalised. And in a curious twist, Liz Cunningham MP, in response to criticism from the graziers, promised to introduce a private members Bill giving equal procedural rights to pastoralists. If such legislation passes, the most virulent opponents of native title will have indigenous interests to thank for their improved situation.
Paul Burke is Acting Manager of the Native title Policy and Legislation Section of ATSIC.
 The views in this article do not necessarily represent the views of ATSIC. I acknowledge the assistance of Sean Brennan and also James Fitzgerald and Ciaran O’Faircheallaigh in helping me understand the Queensland legislation.
 See James Fitzgerald, ‘Queensland Native Title: The State of Play’ in 15:4 Indigenous Law Bulletin (1998), p 16; and Graham Carter, ‘The Ten Point Plan - Beattie Style’ in Land Rights Queensland, October 1998; Julian Foley, ‘Beattie Government Stalled on Native Title’ in Land Rights Queensland November 1998.
 Wik Peoples v State of Queensland & Ors (1996) 141 ALR 129.
 See QIWG, State Native Title Legislation: the Elements of a Real Right to Negotiate, 15 October 1998.
 See Second Reading Speech in Queensland Government Hansard, 21 October 1998, p 2633.
 For further details, see the Queensland Indigenous Working Group’s Comments on the native title (Queensland) State Provisions Amendment Bill (No.2), 2 November 1998.
 Reported in The Courier Mail, 23/10/98, p 4.
 The Courier Mail, 23/10/98, p16.
 Recorded in the Fassifern Guardian, 4 November 1998, p 6.
 see for example the report of comments by the managing director of QCT Resources and the chief executive of MIM in The Australian Monday 9 November 1999, p 5.
 QIWG Media Release, 30 October 1998.
 See Native Title Services, Department of Premier and Cabinet, Queensland Government Native Title: the Queensland Response October, 1998, p 22.