A new deal but losses still outweigh the gains

Opinion Article

1998 July, 4

Yes, the sunset clause on claims under the Native Title Act has now been tossed. Yes, the registration test will not unjustly preclude Aborigines who may have been prevented from entering pastoral leases by locked gates.


Yes, any actions by state and territory governments under the Act must now be construed within the meaning of the Racial Discrimination Act.

These were important last-minute gains for Aborigines, secured by the tenacious efforts of Senator Brian Harradine facing the threat of a double dissolution by Prime Minister John Howard.

But there are many other reasons _ up to 80-90 percent of the Amendment Bill _ why Harradine and the Senate should vote these amendments down.

The fourth agenda item of the Howard-Harradine negotiations was the right to negotiate on pastoral leases. This has been the most difficult issue of all because it involves complex questions of substance and political perception. It is clear that Harradine has attempted to preserve a version of the RTN, dressed up to look like another procedure.

The Harradine camp believes that in substance (as opposed to appearance) Aborigines will have full rights to negotiate resource development on pastoral leases that are little different to the RTN. This belief is genuinely held because the preservation of the RTN has been a key issue for the senator. But is his belief reflected in the detail of the Bill which he has agreed with the Government?

No, the model is substantially defective. It may amount to little more than a right to be consulted about developments on native title land, rather than a right to negotiate agreements. There are too few protections for Aborigines under the model and far too much scope for state and territory governments to establish draconian procedures.

The rejection of the Harradine model by the Opposition and the minor parties in the Senate is therefore well-founded. Now that the details of the scheme are clearer, my own initially hopeful comments on the model were clearly hopelessly misplaced.

On this RTN ground alone, the Senate should reject the Bill. But there are many other grounds, involving both the machinery provisions of the Native Title Act and the substantive native title rights of Aborigines which were already junked by Harradine in the Senate session before Christmas 1997.

It is clear that Howard has managed to rip the heart out of the original native title legislation negotiated by Aborigines in 1993.

The automatic ability for all leases to allow full primary production is a stand-out grab-for-more-rights provision by the farmers. This means that leases that used to allow only grazing can now be upgraded to allow anything falling within the definition of ``primary production'' _ including forestry, aquaculture and tourism operations. All this can be done without reference to Aborigines who may be native title-holders. The environmental and land degradation implications of this provision are enormous and have not been taken into account.

Aboriginal objections to the primary production provision were tossed aside last December and have never been revisited by Harradine despite Aboriginal concerns about its effects.

The Schedule of Extinguishing Tenures, which lists tenures that in the judgment of the Government have extinguished native title, is an arbitrary compilation by the Commonwealth working with state and territory counterparts. Rather than allowing the rule of law to determine whether a certain tenure has extinguished native title or not, a political judgment has been made to include these tenures in the schedule.

The schedule will result in the extinguishment of native title in many tenures where the common law may have allowed for co-existence. But again, Aboriginal objections to the schedule were brushed aside by Harradine last December and this issue has not been revisited since. To this minute, Harradine does not know what tenures are included in the schedule (it is impossible to decipher) and he is acting with complete blind faith in the Government's list.

Harradine unilaterally gave away 80 percent of the Aboriginal position last December (thereby immediately giving Howard eight of his 10 points) because he had decided he could only preserve the Aboriginal position in relation to the remaining 20 percent.

Harradine has done better in relation to these four remaining issues. He has preserved decent provisions in relation to three issues and he has tried to create a new RTN on pastoral leases. But he has fallen short in this last noble objective.

The scorecard is therefore miserably imbalanced against Aborigines. If this country believes in the importance of Mabo (as difficult as it is these days) and the grave historical consequences of its repudiation by non-Aboriginal Australia, then the Senate should reflect again on the absence of true balance and true compromise in the Harradine-Howard deal.

A new deal but losses still outweigh the gains