Law rewrite sweeps away rights

Opinion Article

1997 September, 9

There still is time for a negotiated agreement on native title which will prove just for pastoralists, miners and Aborigines

There is a world of difference between ``amendment'' of legislation and ``repeal and replacement'' of legislation.

Prime Minister John Howard's 300-page Native Title Amendment Bill, tabled in the House of Representatives last Thursday, is not amending legislation.

It represents a total rewrite of the original 1993 Act that Aboriginal leaders negotiated with Federal Parliament and destroys a number of the cornerstone principles that were settled then.

This massive Bill puts the lie to Howard's promise before the 1996 federal election that his government would only address the ``workability'' of the Act and not extinguish native title.

Howard's Bill must, at all costs, be stopped from passing Federal Parliament without a number of fundamental changes and omissions.

The consequences for the future of the country for such vile proposals to become the law of the land are too depressing to contemplate. We have to maintain a belief that justice will prevail in the debate and Australians of goodwill everywhere will need to work hard to ensure that it does.

Does my rejection of the Howard Bill mean that I am opposed to amendments to the Native Title Act? No, it does not. Changes clearly need to be made but Howard has gone completely overboard with his Bill.

Does my urging of senators to oppose this Bill in its current form mean that I don't support the right of pastoralists and miners to pursue economic development? No, it does not. Again, there are useful changes that can and should be made to the Native Title Act.

But why has Howard followed Senator Nick Minchin's extreme ideological advice and gone beyond providing security to farmers and miners to destroying the security of native title holders?

The Courier-Mail's editorial last Friday suggested that ``there will be losers'' from the forthcoming debate. I disagree.

Australians clearly should understand that the issues at the heart of this debate do not necessitate losers. If we are sensible and fair about this, there need not be any losers.

We can have legislation which confirms the rights of leaseholders, so that they can carry on their business. As the High Court judges said in the Wik case: the leaseholder's rights already prevail over any native title rights.

We can have legislation which ensures that the right to negotiate on mining works smoothly and efficiently without taking away the right from Aborigines.

We can have legislation which removes overlapping and multiple claims by Aboriginal groups (which has been a major problem with the Act) so that the native title process can work with greater certainty. This will require changes to the threshold test for claims but, again, Howard's proposals go way overboard on this crucial issue.

We can have legislation which urges parties to come to negotiated agreements at the local and regional (and even statewide) level rather than promoting litigation in the Federal Court which represents a crippling and unnecessary cost in most cases.

A win-win outcome requires us to make sensible and balanced amendments to the Native Title Act without destroying its foundation principles.

We cannot achieve this by 300 pages of new law, based on new principles that take, take, take from the Aboriginal side and give, give, give to the other stakeholders.

I am afraid this debate is going to become shrill and the opinion leaders and editorialists will come to lazy conclusions, because they just want the issues to be settled and to go away.

They will start to prescribe their own versions of pragmatic balance and fair and realistic outcomes (Aborigines will just have to take the hit) without taking the responsibility as Australians to properly comprehend the issues.

The chief difficulty the nation will have as we embark again on this debate will be the Prime Minister's unabashed propensity to misrepresent the truth about key issues.

When Howard addressed more than 2000 pastoralists at Longreach earlier this year, he told anxious and angry people something that he knew to be untrue. He said, as he thumped the lectern: ``Please don't believe this fear-mongering that says native title claimants can move you off your property. They can't.. We will never ever allow that to happen.''

The truth is that, under Wik, there is no way that leaseholders can lose their title. The property rights of the pastoralists legally cannot be taken from them. Why contribute to the paranoia and genuine anxiety of these leaseholders, many of whom fear that they will lose their properties, by this kind of misrepresentation?

Surely the Prime Minister should have assured the pastoralists that under the Wik decision their rights remained secure and would prevail over native title.

Another example emerged on Thursday when Howard told the ABC's 7.30 Report that ``the Labor Party and the Democrats are effectively saying the Aboriginal people of Australia should have the potential right of veto over further development of 78 percent of the land mass of Australia''.

Putting aside the nonsense percentage, there is a world of difference between a ``right of veto'' over mining (incidentally, wheat farmers in Western Australia are one of the few landowning groups that have such a right) and a ``right to negotiate'' to mining.

The ``right to negotiate'' gives Aborigines the right to make a deal with a mining company within a six-month period. If no deal is made, the matter then goes to arbitration. If the arbitrator supports the Aboriginal objection, the relevant state or territory minister has the absolute right to veto the arbitrator's decision.

If you follow the right-to-negotiate process, at the end of the day the minister has the final say. That is the current law. It is written in the Native Title Act. So how can Honest John call the right to negotiate a veto?

Has he not been briefed about the true state of the law? Has he accidentally used the emotional word ``veto''? Does he now regret his misrepresentation?

Of course not. Howard has shown clearly that there will be no leadership from him on the native title debate. He has marked himself as the champion of the mining corporations, the millionaire land barons, the state and territory governments.

He has shown that he is prepared to stoop to every kind of cheap distortion and misrepresentation of the truth including waving coloured maps of Australia on national television to convince people he is doing the fair and right thing. He is not and he will be opposed utterly.

Law rewrite sweeps away rights