Fairness the key to native title solution

Opinion Article

1997 April, 12

The Queensland National Party has a ``compromise'' proposal on Wik: that native title should be extinguished on pastoral leases. The State Government would then give leaseholders whatever increased title they wanted perpetual leases or freehold for a pittance.

What would Aborigines get? They would get freehold title to vacant Crown land. Sounds fair, some might think. In fact, the Nationals are trying to pull a huge scam which is so brazen it could only come from political cowboys. There is almost no vacant Crown land in Queensland. It has less vacant Crown land than any other state or territory. On a map of state land tenures, you cannot see the areas of vacant Crown land with the naked eye. About 57 percent of Cape York Peninsula is covered by pastoral leases with vacant Crown land limited to about 0.7 percent.

If there is so little vacant land on Cape York, imagine what there is elsewhere in the state. Small blocks of vacant Crown land are known to exist on saltflats, small uninhabitable islands and small blocks on the outskirts of towns near sewage ponds and rubbish dumps. To find vacant Crown land in Queensland is truly a needle-in-a-haystack exercise. Almost the entire state is covered by freehold and leasehold tenures and Crown reserves.

So what exactly is the National Party offering Aborigines? Zero. Beads and mirrors have been replaced by smoke and mirrors. And yet we have heard Senator Bill O'Chee running around the countryside trying to beat up support for this scam.

Not since former New South Wales chief magistrate Murray Farquhar tried one on the Philippines gold bullion reserve has there been a more egregious try-on than this.

It won't happen because it can't happen. Native title over pastoral leases cannot be extinguished without generating even more uncertainty and conflict. It would make the present confusion pale in comparison.

The economic cost to the country would be horrendous. Not only would the requirement under the Constitution to pay just terms make the present national deficit look like the least of our economic problems but the lost opportunities for development of land and resources, for tourism, mining and primary production would be of even greater cost.

Who is going to invest in the country while countless legal challenges to extinguishment are still running? And what will the necessary legal discrimination (which would be the unavoidable consequence of extinguishment) mean for Australia's international reputation? What will it mean for our human rights record and treaty obligations? What will it mean for the Olympics, the new millennium and centenary of federation?

What will it mean for our souls? One mob left eternally to account for their infidelity to their own rule of law and for racial discrimination; another mob left with everlasting hatred burning in their hearts.

These are not scenarios we can afford to countenance as an economy, as a democracy and as a people. Sharing the country and respecting its indigenous heritage while respecting the moral and legal entitlement of Aborigines is our destiny. This is what white Australians must accept.

The High Court also put forward principles which recognise the accumulated and continuing moral and legal entitlements of those who have come to this country since 1788. This is what black Australians must accept.

If the National Farmers Federation was led by rational and sensible leaders in this present trauma, indigenous representatives would want to work with them toward two objectives. The first would be to ensure that co-existence did not cause economic detriment to pastoral leaseholders. While native title will provide an economic base for Aborigines to finally climb out of the welfare trap in the long term, this cost cannot be borne by pastoralists. There is more than enough economic hardship in rural Australia and we have to ensure that our co-existence scheme does not add to this burden.

Pastoralists might have to do things differently. They might have to develop a new regard for indigenous cultural issues. They might have to plan for the management of heritage as they are increasingly expected to in relation to the environment. They should develop relationships with indigenous groups. They might want to jointly advance developments for mutual benefit. But any requirements on leaseholders should not place them at any commercial disadvantage that they did not suffer before the Wik judgment.

The second objective is to ensure there is appropriate flexibility for leaseholders to undertake their diverse production activities and to utilise new techniques. Crown leases have been historically crafted to ensure that land use and development is appropriate and sensible given the soils, climatic and vegetation conditions of the land. The disasters that wholesale land clearing and overstocking have wreaked on Australian rangelands is well-known.

The national embrace of Landcare championed by that historic alliance between Rick Farley, then of the NFF, and Phillip Toyne, then of the Australian Conservation Foundation is testament to the importance of lease management in the future. In securing opportunities for leaseholders to diversify, we must observe the precautionary principles that our less than proud history of land degradation has taught us.

Leaseholders cannot expect to radically change land-use from, say, growing sorghum for cattle feed to growing cotton, without dealing with native-title implications. Such radical changes to land use must be appropriately assessed.

These are critical policy issues and the co-existence scheme must seek to strike the right balance between the reasonable expectation of leaseholders to develop the land and to diversify, and to ensure that Aborigines are able to enjoy their native title rights and interests. It is a pity we are unable to work closely with representatives of the rural sector on devising a co-existence scheme which achieves the right balance. But you simply cannot negotiate with another party whose sole contribution from across the table is: we want to extinguish your rights.

In the 1980s, it was the NFF which provided much of the intellectual leadership on national economic reforms. It was the NFF which developed Landcare. In 1993, it played the most constructive role on Mabo. All of these achievements were contrary to the instincts of the National Party and were pursued by the NFF despite the politicians. In 1997, we have an NFF leadership which cannot distinguish itself from the National Party, and this has made the policy search for the best co-existence scheme very difficult. But this has not dimmed my conviction that a fair solution for Aborigines must also be fair for leaseholders.

Fairness the key to native title solution