GOVT TOLD TO END LAND TITLE DOUBTS.
by Peter Hartcher and Paul Chamberlin
Canberra: The Federal Cabinet is to consider next week whether it
should act to dispel doubts about Australia's property ownership
laws after the landmark High Court decision in June which
overturned two centuries of ownership principles.
The judgement, that the Murray Islands in Torres Strait belonged
to the Meriam people, ended 10 years of litigation mounted by the
Meriam's traditional leader, the late Eddie Mabo, and other
plaintiffs in actions against the Queensland Government.
It recognised a new class of ownership rights, native title, for
Australia's indigenous inhabitants, subject to Federal and State
legislation.
Industry, concerned that the judgement has thrown fundamental
questions of land use and ownership into turmoil, is pressing the
Government to enact legislation to restore certainty.
Cabinet is expected to consider next tuesday a submission which
canvasses options for action. A favoured option is to begin
consultation to establish guidelines.
The High Court judgement ended the notion of terra nullius, which
stated that Australia was effectively unoccupied at the time of
European civilisation (sic-R) and that there was no pre-existing
land entitlement for Aborigines.
Aboriginal groups are now moving to make claims on at least three
mining sites, including a major bauxite plant in Gove, drawing on
the court's reasoning in the Mabo case.
Freehold title - which the great bulk of Australian population
holds over its residential and industrial land - is not affected
by the decision. Australia's cities are essentially built on
freehold land, which comprises about 15 per cent of the land
mass.
And the High Court suggested that existing rights over other
classes of land title should essentially be kept intact.
But the precise nature of the land use rights of most of the
country is now under some uncertainty.
Crown land which has not been let - so-called unalienated Crown
land - appears to be subject to Aboriginal claim provided the
claimant can show a traditional association with the land. Such
land accounts for 30 to 40 per cent of Western Australia.
And while the existing rights of people occupying leasehold land,
which accounts for a fraction under half of the country, are
probably preserved intact, there may be cases where Aborigines can
be granted some rights over the same land, according to legal
advice to the Government.
These could be granted only so lang as they did not infringe the
rights of existing occupants, and great uncertainty prevails over
how these principles might apply.
The Australian Mining Industry Council and the National Farmers'
Federation have both asked the Government to limit the
uncertainty.
One of the High Court judges in the Mabo case, Justice Brennan,
said there might be other areas where native title had not been
extinguished and where Aborigines, maintaining their identity and
customs, were entitled to enjoy their native title.
The Prime Minister's Department then took charge of the working
party looking at the far-reaching implications of the decision.
Mr Keating said the case could provide "a very firm basis for
reconciliation" of black and white in Australia.
Aboriginal groups have been quick to use the judgement either a
(sic-R) precedent or the basis of a claim for native title against
mining companies.
These claims include a region of the Kimberley in WA subject to a
continuing claim by three Aboriginal communities, a claim by the
Northern Land Council for bauxite interests in the Gove Peninsula
in the NT, and another for the foreshores of the Gulf of
Carpentaria in the McArthur River region where a mine is
proposed.
It is understood that another claim has been made against a mining
company in Queensland.
The Managing Director of Western Mining, Mr Hugh Morgan, said this
week that the judgement had thrown property laws into disarray and
that terra nullius applied not only to uninhabited land but to
land occupied by primitive peoples.
Ends.