The following is background information relating to the consequences of the
High Court's decision in the Mabo Case in relation to native land title.
The document is 40.2K
suephil
(Sue Harris and Phillip Bannigan)
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Authorised by :
Lorraine Napiljarri Thompson of Wave Hill / Adelaide
Australia
The following quote is in relation to the forthcoming Cabinet decision on
October the 14th, whether or not to suspend the Racial Discrimination Act to
allow the extinguishment of Native Title.
" These are the immediate implications of the Government Decision if the
States' needs are made greater than the Aboriginal and Torres Strait
Islander People :
* We lose our Power of Veto.
* The Racial Discrimination Act is tragically compromised. This has
National and International implications. "
- Lorraine Napiljarri Thompson
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This Plan came out of the Eva Valley Meeting attended by Aboriginal leaders
and organisations.
THE ABORIGINAL PEACE PLAN
1. Recognition and protection of Aboriginal and Torres Strait Islander
Rights.
* EG i) Right to self-determination.
ii) Right to be free from discrimination.
iii) Land Rights.
2. Aboriginal and Torres Strait Islander not to be extinguished by grants
(co-existence and revival)
* EG Pastoral leases and mining leases.
3. Aboriginal and Torres Strait Islander title not to be extinguished or
impaired unilaterallly without consent.
* must be free and fully informed consent.
4. Declaration of Aboriginal and Torres Strait Islanders title in Reserves
and other defined lands.
* i) Reserves
ii) National Parks
iii) Vacant Crown Land
5. A Tribunal to issue declarations of Aboriginal and Torres Strait Islander
land title.
i) Membership
ii) Powers
iii) Functions
6. A long term settlement process for the benefit of all Aboriginal and
Torres Strait Islander Peoples.
This is a TREATY proposal - such an Agreement must be internationally
enforceable. This requires recognition by the Commonwealth of pre-
existing or continuing Aboriginal Torres Strait Islander sovereingty.
Some questions to address:
a) What should be in a TREATY.
b) Who will negotiate.
c) Should there be multiple TREATIES? Regional/Local.
7. Total security for Sacred Sites and Heritage areas.
* Simply NOT NEGOTIABLE. Any existing discretion presently held by non-
indigenous people must be removed. e.g. Commonwealth Minister's
discretion to issue or not to issue declarations.
8. Commonwealth and Aboriginal and Torres Strait Islanders Peoples to
negotiate towards constitutional acknowledgement of Aboriginal and Torres
Strait Islander rights.
* Constitutional enshrinement of existing human rights and fundamental
freeedoms and the special and unique rights of Indigenous Peoples.
9. Validation of Mineral Titles 1975 - 1992
Recognise we have no authority or power to determine what activities
take place on other people's country - that is a decision for the
relevant Native Title Holders. But one of the questions for the
meeting is: what is our strategy if government validates these titles
without consent of relevant Native Title Holders?
What strategy should be developed (if any) for other forms of Title and
moves by government to validate them?
____________________________________________________________________________
The following fact sheets should be photocopied on differennt coloured paper
if possible.
THE COMMONWEALTH'S MABO PROPOSALS - FACT SHEET 1 OF 7
EVA VALLEY WORKING GROUP
OVERVIEW
Following is the first national meeting of Aboriginal and Torres Strait
Islander people at Eva Valley, Northern Territory, on 3-5 August 1993, the
Eva Valley Statement on the Commonwealth Government's response to the MAbo
decision was prepared and presented to the Prime Minister.
On 2 September, the Prime Minister gave out the Commonwealth's OUTLINE OF
PROPOSED LEGISLATION ON NATIVE TITLE. This is a long and complicated
document, and it contains the Govbernment's detailed proposals for a new law
- the Native Titles Act - which is now being drafted. Over the coming
weeks, the proposals will be very carefully examined, and ATSI peoples will
make their views known to the Government and other members of Parliament.
The Eva Valley Working Group has been set up to coordinate a response to the
proposals for this new law.
The first thing is for people tp be well informed on what is in the
Government's proposals. To help with this, seven fact sheets have been
prepared as follows:
NO 1: OVERVIEW
NO 2: THE TRIBUNAL
NO 3: PROVIDING NATIVE TITLE
NO 4: EXTINGUISHEMTN OF NATIVE TITLE
NO 5: RIGHTS TO RESOURCES
NO 6: DEALINGS IN NATIVE TITLE LAND
NO 7: COMMONWEALTH AND STATE RESPONSIBILITIES
Each fact sheet starts with an introduction and then has two main sections
* WHAT THE COMMONWEALTH PROPOSALS SAY
* COMMENTS ON THE PROPOSALS
As we all know, the reason for this new law is the High Court's Decision in
the Mabo Case, which found that native title to land has always existed in
Australia and it still exists where Aboriginal and Islander people have an
ongoing traditional connection with their land and their title has not been
extinguished(eg: by a valid grant of freehold). The government could have
left native tilte questions to be handled by the courts in the normal way,
but mainly because certain groups have raised unnecessary fears about titles
to land all over Australia, the decision was made to legislate - ie, make a
law in Parliament.
The Commonwealth's legislation proposes to do the following -
* validate Governemtn land grants made before 1 July 1993 which may be
invalid because of the existence of native title
* establish a Tribunal to decide on native title claims to land
* lay down procedures for grants of mining interestes over native land
after 30 June 1993.
Overall the Proposals are very disappointing, from an Aboriginal and
Islander viewpoint. In particular-
1 The proposals give the narrowest possible room for native title to
operate. In every case of a competition between Aboriginal and non
Aboriginal interests, it is the non Aboriginal which come first.
2 Native titles are extinguished in cases where they could clearly coexist
with granted titles (eg pastoral and tourist leases) and be able to revive
ig the granted interest terminates or is bought by the former Aboriginal
owners.
3 To validate past dealings back to 1788, the Commonwealth intends to
override its own Act, the Racial Discrimination Act 1975 and deny Aboriginal
and Islander peoples basic human rights guaranteed under international law.
4 It is possible that even the few remaining native title rights some
communities posess - to collect bush tucker, fish etc - are going to be
removed, Opportunities for Aboriginal and Islander peoples to improve their
economic self reliance and apply traditional resource management skills to
protect the environment are being wasted.
5 The general belief seems to be that Aboriginal and Islander people are not
interested in the development of their lands and that it has to be imposed
on them by negotiation, arbitration and if that does not work, by the
Government.
6 The proposal to allow State and Territory Governments, their laws and
tribunals into the area of native land titles is likely, on past experience,
to work against Aboriginal and Islander people.
7 In general, there is no evidence that native title is a welcome addition
to the Australian legal landscape - capable of enriching its multi-cultural
society and bringing spiritual satisfaction to very many Australians.
Instead, it is treated as a nuisance, to be tied down and confined as much
as possible, so that the priveleged non-Aboriginal Australians can get back
the "business as usual" with the minimum inconvenience. This is not the
kind of "ungrudging" recognition of native title which the Prime Minister
promised us.
These seven fact sheets should be spread around ATSI communities as widely
and as soon as possible. They can be photocopied, faxed and handed out and
read out over English and language radio broadcasts. This way, people will
be able to learn about the Commonwealth's Proposals, discuss them and decide
what they want to do about them. The Proposaks will come out next in the
form of a draft NATIVE TITLE BILL.
THE COMMONTWEALTH'S MABO PROPOSAL FACT SHEET 2 OF 7
EVA VALLEY WORKING GROUP
THE TRIBUNAL
At the moment, Aboriginal people need to rely on a court if they want to
prove that they are the owners of native title. There are some problems
with going to courts (such as problems with evidence), so a simpler and more
flexible tribunal is being proposed, with some members being drawn from ATSI
communitites.
The Commonwealth Government has always proposed setting up a tribunal
system. However, the State Governments have said that they want to control
the system for determining native title. The Commonwealth has now proposed
a Tribunal system with both Commonwealth and State parts to it (see further
on this in Fact Sheet 7).
What the Commonwealth Proposals say:
A. ELEMENTS OF THE TRIBUNAL
The NATIONAL NATIVE TITLE TRIBUNAL will have -
* Judges (from the Federal Court)
* Mediators / Assessors (people with special skills in ATSI
societies, mediation, land management, etc.)
* Members (also people with the above special skills)
* Registrar (paras. 79,85)
As far as possible, the Aboriginal and Torres Strait Islander people will be
appointed as Mediator/ Assessors (para. 85).
Where a State or Territory body has been recognised by the Commonwealth as
a suitable Tribunal, then its elements (Judges, etc.) will be set out in the
State or Territory law. But the Commonwealth will only recognise such a
State or Territory body if it meets certain requirements, including -
* acceptance of the national approach to recoginition of native
title
* involvement of people with special skills, especially in ATSI
societies
* informal procedures and mediation
(para .78)
The follwoing information relates to the National Native Tribunal, but
something similar might apply to recognised State or Territory bodies.
B. HOW THE TRIBUNAL WILL OPERATE.
There will be two parts of the Tribunal -
i) A JUDICIAL PART
This part will be a branch of the Federal Court, and will consist of a
Judge, assisted by Mediators / Assessors. Their main jobs will be to -
* decide if native title exists and who owns it
* decide what rights go with native title
* decide what rights other people have over native title land
* work out how much compensation should be paid, where native
title has been extinguished or reduced.
* approve mediated agreements (paras. 80,83)
ii) A NON-JUDICIAL PART
This part will be made up of Members (see above), who can also be Mediators
/ Assessors. Their main jobs will be to -
* assist negotiations between native title holders, Governments
and people seeking grants over native title land
* if negotiations fail to produce an agreement, decide whether a
a grant (eg an exploration licence) should be made.
There will also be a Registrar of Native Titles who will keep -
* a Register of claims, and
* a register of native titles
and will help ATSI claimants to lodge their claims ( paras. 94, 105).
A Judge of the Tribunal can decide that a claim for native title should not
be registered in particular cases (para. 95 - see Fact Sheet 3),
and will also review legal matters arising from decisions by Members over
whether a grant eg an exploration licence should be made over native title
land (para. 81)
The Tribunal will have all the powers necessary to carry out its work (to
summons people to appear, produce documents, etc.), and it can call in
experts to advise it, prepare reports, etc. (paras. 110, 112, 113). It will
not be bound by the rules of evidence (para. 82) and it can hear evidence of
secret matters in private (para. 111). It is intended to operate informally
(para. 82), but its decisions will be court decisions.
Appeals will be open -
* from a Judges decision, to the Full Federal Court
* from any other decision on a point of law to the Federal Court
(para. 122)
COMMENTS ON THE PROPOSALS:
1. The general approach in all these proposals is good. The main concerns
are over how they will be applied.
2. Aboriginal people must be able to choose that any decisions to do with
native title are made by the Commonwealth body. This is a matter of the
greatest importance, as there is a deep distrust of State and Territory
bodies - where non Aboriginal parties (eg mining companies) will probably
try to have their applications heard.
3. The majority of Mediator/Assessors and Tribunal Members should be
Aboriginal and Torres Strait Islander persons.
4. The provisions for protecting information which is sacred, secret,
confidential, sensitive or private need to be tight.
THE COMMONWEALTH'S MABO PROPOSAL FACT SHEET 2 OF 7
EVA VALLEY WORKING GROUP
PROVING NATIVE TITLE
The existence of native title can be established before the new Commonwealth
Tribunal or before a recognised State or Territory Court (see Fact Sheets 2
and 7 for more on this). There is no presumption (acceptance) of native
title - eg, to reserves, or vacant Crown land. Instead, it will be necessary
for Aboriginal people to prove their claim that native title in their land
exists. The main matters they will have to prove are -
i) That they have an ongoing traditional connection to the land; and
ii)That their title has not been extinguished (eg, by grant of
a freehold).
WHAT THE COMMONWEALTH PROPOSALS SAY:
There are four main steps for proving native title:
STEP 1: APPLICATION
People claiming native title must put in an application to the Tribunal.
They will be given help to do this (para. 94). A State Government or
someone with an interest in some land can also apply to the Tribunal to find
out whether there is any native title in the land (para. 101). If that is
done, anyone claiming native title in the land will also have to put in
their claim to the Tribunal.
STEP 2: NOTIFICATION
After it receives and application, the Tribunal must notify -
* the relevant ATSI organisation
* the State or Territory Government
* the people with registered interests in the land and any
adjoining land.
* other native title claimants in the area
* the general public (para. 99)
STEP 3: REGISTRATION OF A CLAIM
Not all claims will go through a hearing. The Tribunal will only hear
REGISTERED CLAIMS, and it can strike out a claim, eg, if it does not contain
sufficient information, or if the claimants are not representative, or if
native title has already been extinguished (para. 96)
STEP 4: DETERMINATION
The Tribunal can try to mediate and agreement if there are opposing claims
(using ATSI mediators,) but in the end it must determine -
a) whether there is any native title interest in the land;
b) if so, then -
i) who hold it?
ii) what are the rights - are they rights to "exclusive
possession, occupation, use and enjoyment of the land
by the native title holder as against the whole world",
or, if not, what are they.
iii)what legal restrictions apply,
c) where are the boundaries of the land? (paras. 80 (c), 115,116)
An appeal can be made from the Tribunal's determination (para. 122), but in
general further claims to the same land will not be allowed (para. 95(e),
118). A determination of native title gives a legal interest to the title
holders (para. 108), and the title will be held on their behalf by a
representative corporate body - eg, an association (para. 114). A native
title can be exchanged for a non native title (eg a freehold), if the title
holders so wish (para.29).
COMMENTS ON THE PROPOSALS:
1. There is no attempt by Government to earmark any land as native title
land. In every case - even for reserves - Aboriginal people have to prove
that the land is native title land, and other people can oppose their
claims.
2. State and Territory Governmments, and even people like pastorla and
mining companies, can apply to establish that no native title exists in
particular land, and the burden is then on Aboriginal people to prove that
it does exist. This negative attitude to recognising native title
contradicts the Prime Minister's committment to an "ungrudging and
unambiguous recognition of native title".
3. It is NOT clear that Aboriginal People can always choose which Tribunal -
Commonwealth or State / Territory - they take their claims to. They must
have this choice.
4. The procedure for making claims must be made clearer, ie -
* how is a claimant authorised to act on behalf of a group
* where more that noe claim is made for the land, what happens?
* how can a claim be ammended?
5. The notification requirements must allow enough time for Aboriginal
people in remote areas to take steps to protect their interests. ATSI
organisations should have a bigger role in this.
6. The procedure for registration of claims could easily work against
Aboriginal interests, and must be made much more simple. Why can an
Aboriginal claim be dismissed as "vexatious" (ie not genuine) but not an
application by an non Aboriginal? In Northern Territory, we have seen non
Aboriginals trying to swamp the land rights process with applications, there
is the same risk here.
7. The proposals attempt to apply non Aboriginal property values to native
title lands. This is wrong. The High Court said native title is determined
by the customs of native title holders NOT other peoples customs.
8. Aboriginal ideas of boundaries must also be recognised, not just official
ideas of boundaries.
9. Who holds a native title is a matter for the title holders, and officers
of the Tribunal should not be responsoble for preparing and updating
membership lists, etc.
10. If title holders exchange their native title for statutory title, there
must be protection for p[resent and future generations from loss of title.
THE COMMONWEALTH'S MABO PROPOSALS - FACT SHEET 4 OF 7
EVA VALLEY WORKING GROUP
EXTINGUISHMENT OF NATIVE TITLE
The Commonwealth's intention to "rool back" the operation of the RACIAL
DISCRIMINATION ACT 1975 (the RDA) is the most undesirable aspect of the
Proposals. There is no doubt that the Goverenment has a legal problem here,
because certain acts occured after 1975 (grants of freehold, etc.) which -
now that native title has been provedn to exist - can be seen to have been
invalid. In order to "validate" those grants - ie, make them legally safe -
the Government believes it has to override the RDA.
There is some argument over whether validation is really necessary. Some
people say that the Commonwealth should not make any new law, but should
jsut let the courts handle claims to native title in the normal way. Others
say that, if there is doubt, there MUST be negotiation in each case with
Aboriginal people. One sure thing is the present Proposals will mean a
greater validation of granted titles - and, therefore, a greater
extinguishemtn of native titles - than was originally intended, because the
Commonwealth has now decided to extend the validation back to the beginning
of non Aboriginal occupation - 1788.
WHAT THE COMMONWEALTH PROPOSALS SAY:
Two key terms here are "extinguishment" (total loss) and "impairment"
(partial loss) of native rights. The Proposals also allow for the wishes of
native title holders to be overridden against their will. In certain
circumstances for mining purposes, and this is examined more fully in Fact
Sheet 6.
A. VALIDATION OF PAST GRANTS
The provisions here only apply to grants invalidated "by operation of law"
(para. 21). The Commonwealth view is that there are very few such titles.
It seems that they see validation only applying where -
* a native title existed at the time of the grant: and
* the grant was invalid, because of the breach of the Racial
Discrimination Act, or for any other legal reason (such as
breach of Trust, as argued in the Wik claim).
There are two situations :
i) NON MINING GRANTS (IE, FREEHOLDS, RESIDENTIAL, PASTORAL AND TOURIST
LEASES CALLED CATEGORY 1 PAST GRANTS) The proposed act will -
* extinguish any native title, and
* valiadate the grant
Compensation is payable (para. 27)
ii) MINING GRANTS (IE, MAINLY FOR MINING AND PETROLEUM PURPOSES, BUT ALSO
ANY OTHER NON CATEGORY 1 PURPOSE - CALLED "CATEGORY 2 AND 3 PAST GRANTS")
The proposed act will -
* validate the grant, and
* preserve the native title, SUBJECT TO THE GRANT
Compensation for impairment of native title is payable (para.24)
B. OTHER FORMS OF EXTINGUISHMENT
Many other native title interests are being made useless (really,
"extinguished") under the Proposals for confirming non-Aboriginal rights
over plants and animals, minerals and petroleum, water, coastal fishing and
offshore areas, beaches, waterways and public places. These matters are
looked at in Fact Sheet 5 - Rights to Resources. Because the law will say
that these Aboriginal rights are NOT being extinguished, and these other
laws (eg, on environment protection) do not discriminate but apply to
everyone equally, there will probably be no compensation paid for this form
of extinguishment of Aboriginal rights.
C. COMPENSATION
Compensations must be paid -
i) when native title is extinguished or impaired as a result of the
validation of past grant (eg, freehold, pastoral or mining lease) (paras.
27(c), 24(c))
ii) in the case of future grants (eg. for mining operations), when ever a
holder of a freehold title would have the right to compensation. (para. 73)
The compensation must be paid "on just terms"(paras. 28,68), it can take a
form other than money if people agree (eg, a land grant - para. 69), and if
agreement cannot be reached the Tribunal will determine the compensation to
be paid (para.71). No extra provision is made for "special attatchment" of
Aboriginal people to their lands.
COMMENTS ON THE PROPOSALS:
1. These Proposals give the narrowest possible room for native title to
operate. In every case of competition between Aboriginal and non-Aboriginal
interests, it is the Aboriginal interests which are overridden. They are
either totally extinguished, impaired in some way, or made useless by being
buried under other rights.
2. The worst cases are the validations of past dealings. Bad enough that
Aboriginal people have to accept grants wrongly made over their native title
land, but now these grants will be treated in most cases as totally
extinguishing the native titles.
3. To carry out this scheme, the Commonwealth proposes to override its own
Act, the RDA, and deny Aboriginal people such basic human rights as equality
before the law, the right to own and inherit property, and not be
arbitrarily deprived of it.
4. Australia has signed the Convention on the Elimination of All Forms of
Racial Discrimination (CERD), and passed the RDA in 1975 to give effect to
it. To override the RDA now will seriously damage it - and Australia's
international reputation.
5. There is no genuine need for such sweeping extinguishment. Native title
can coexist with many granted interests, and in some other cases it can
revive. Thus -
* re the pastoral, tourist and even some residential leases (eg, in
mining towns), there is no need for native title to be
extinguished.
In all these cases it should be possible for native title to become fully
operational again, if for any reason the granted interest is terminated, or
if it is acquired by the formere Aboriginal owners. The same should apply
to freeholds too.
6. In general, the approach is to minimise the scope for native title. So,
instead of looking for ways for native titles and granted titles to coexist
- native titles giving way to granted titles, so far as the two are
inconsistent with each other - the approach has generally been to use all
grants as an excuse to extinguish native title. This is far from the Prime
Minister's principle of "ungrudgin and unambiguous recognition of native
title."
THE COMMONWEALTH'S MABO PROPOSAL FACT SHEET 5 OF 7
EVA VALLEY WORKING GROUP
RIGHTS TO RESOURCES
In many parts of Australia, most native title has been extinguished under
the rules set down by the High Court. What remains is likely to be limited
to certain "commons" and specific resources. In inland areas, rivers may be
open to native title, though everything up to the river bank may have been
extinguished by past grants. In coastal areas, native title rights to the
sea - including fishing - as well as to important beach areas will in many
cases still exist.
These rights, although quite limited, may be the only native title rights
still held by some Aboriginal people. They may also give them their only
real chance to sit across the table from Governments and negotiate
settlements as equals. For these reasons, these rights are of great
importance.
WHAT THE COMMONWEALTH PROPOSALS SAY:
The general propositions are -
i) Laws of the Commonwealth, State or Territory that apply generally in the
community (eg, on heritage protection or environmental controls) also apply
to native title land (para.11)
ii)When Law forbids. When a law forbids an activity over land or sea, the
excercise of native title rights is restricted by that Law while it remains
in operation. But the native title rights are not extinguished, and can be
revived if the Law is changed or removed. (para12)
iii)The restriction of activities by such a law soes not lead to payment of
compensation (para.11).
Regarding particular natural resources and areas, the following will apply -
PLANTS AND ANIMALS
Laws for the protection of plants and animals which are already in
operation will apply to native title holders, and may be used to stop
Aboriginal people taking their bush foods according to custom. (para.11)
MINERALS AND PETROLEUM
Governments can confirm their ownership of minerals and petroleum (para.13)
This will extinguish any native titles which might exist at present in
relation to minerals and petroleum.
WATER
Governments can confirm their right to use, control and regulate the flow
of water (para.13). Again, any existing native rights to rivers and inland
waters will be extinguished.
COASTAL FISHING AND OFFSHORE RIGHTS
Exisiting commercial fishing licenses etc., will override any native title
fishing rights, but where fishing rights are granted in future it will have
to be done in a non discriminatory way - treating native title holders the
same as anyone else. Similarly offshore mineral and petroleum rights will
be confirmed, but any future grants of rights will have to be done in a non
discriminatory way (paras. 14-17) If certain fishing activities are
restricted or forbidden by laws of general application then any native title
fishing rights would be restricted by such laws, but would not be
extinguished. (para.12)
BEACHES, RECREATION AREAS, ETC.
Governments can confirm existing public rights of access to waterways,
foreshores, beaches, coastal waters and other public places (para.18). But
such confirmation does not extinguish native title (para. 19). Future
provisions of public rights of access must treat native title holders in a
non discriminatory way.
COMMENTS ON THE PROPOSALS:
1. The proposals will either extinguish or make useless these important
Aboriginal rights to natural resources, and so deny many people their only
chance to negotiate a settlement. It will complete the dispossession of
Aboriginal people in many parts of Australia, and they will not even have a
right to compensation.
2. Re PLANTS AND ANIMALS, preventing the collection of bush tucker
discriminates against Aboriginal people, who are the only ones who rely on
this food source, and whose traditional rights arise from thousands of years
of practice - which now has been recognised by law.
3. Re MINERALS AND PETROLEUM, simply confirming Crown ownership without any
attempt at benefit sharing (eg, payment of royalty equivalents) will
undermine opportunities for economic self-reliance in many areas.
4. Re FISHERIES AND OFFSHORE RIGHTS the protection of existing commercial
fishing operations over native title rights will only reinforce the present
unfair treatment of Aboriginal people in this area. Instead, negotioation
provisions should be built into fisheries legislation, with native title
rights being recognised as special, and worthy of protection - having been
carried out in a sustainable way for hundreds of years.
5. Re BEACHES, RECREATION AREAS, ETC. the Proposals deny Aboriginal people
any opportunity to negotiate access, including conditions aimed at
protection of waterways, rivers and inland waters, beaches, etc. Again, a
majority opportunity to incorporate Aboriginal resource management practices
into the legal landscape is being ignored.
6. In general, the proposed law will make native title to most natural
resources meaningless. The rights in question are more important to
Aboriginal people than non-Aboriginal people, so in this sense their removal
will be discriminatory. Instead of promoting coexistence of rights, the
Proposals sacrifice Aboriginal rights every time.
THE COMMONWEALTH'S MABO PROPOSAL FACT SHEET 6 OF 7
EVA VALLEY WORKING GROUP
DEALINGS IN NATIVE TITLE LAND
The Proposals do not say much about general dealings in native title land,
but they do pay particular attention to the right of Governments to
authorise mining operations to go ahead on land which is, or may be native
title land. In this regard, the Commonwealth ruled out Aboriginal people
having a right of veto over their land, but they did agree to a "right to
negotiate". The Tribunal will be in charge of negotiations (see Fact Sheet
2).
WHAT THE COMMONWEALTH PROPOSALS SAY
Two basic committments are made. After the 30th of June 1993 -
i) grants or government action can only be done over native title
land if the same can be done over freehold land (the "freehold
test" - para. 30), and
ii) grants will NOT extinguish native title (para. 51 - through
compulsory aquisitions by governments will)
The act will deal with two main situations:
A. DEALINGS BEFORE NATIVE TITLE HAS BEEN DETERMINED
What seems to be intended here are grants like mining or petroleum
exploration licenses. Governments can usually grant such licences over any
land, without the owners permission. If such a grant is applied for, and
native title to the land has NOT yet been determined, the steps are -
STEP 1: Notification of application for a grant the tribunal must -
* notify registered claimants
* place notices on the land
* give public notice (by radio, newspaper, etc.)
(paras. 57,59)
STEP 2: After 30 days, if there is no objection from a REGISTERED native
title claiment, the grant can go ahead. (para. 60)
STEP 3: If an objection is made, the Tribunal either -
a) approves the grant, if it doesn't think there will be major
disturbance or
b) if it thinks there might be major disturbance, it attempts to
settle an agreement between the parties. (para. 61)
STEP 4: If there is no settled agreement within 3 months, the Tribunal must
arbitrate the matter (para.64).
In arbitrating (ie, imposing) a settlement, the Tribunal must have regard to
the special attatchment of Aboriginal people to their land, in particular -
* the effect the grant would have on their way of life, culture,
tradition and development
* their wishes and opinions over the management of the land
* their freedom to carry out ceremonies, etc., on the land
* preservation of sacred sites, and the environment. (paras. 64,37)
At Step 3, it will be the Aboriginal claimants job to persuade the Tribunal
that the grant will cause major disturbance, which means -
* direct interference with community life
* interference with sacred sites
* major surface disturbance
* automatic right to mine
If the grant is made, any money paid will be held in trust for those people
found to be native title holders (para. 65).
For grants of "minor" nature (eg, licences to hold sporting events, camping
permits), these can be made so long as there is no right to keep people off
the land, no permanent effect to the land, and the grant ceases when native
title has been determined. (paras. 56)
B. DEALINGS AFTER NATIVE TITLE HAS BEEN DETERMINED
Again, these are mainly exploration and prospecting licenses, although
"other mining tenements" are also referred to (para. 36). If a government
intends to make such a grant over land which is held under native title, the
steps are -
STEP 1: Notification to title holders of a proposed grant for their views
(para. 35)
STEP 2: Negotiations between the parties for 3 months maximum - or 4 months
for "other mining tenements" (para. 36)
STEP 3: If no negotiated agreement determined by the Tribunal within two
months
* whether the grant should be made
* if so, on what conditions (para. 37)
STEP 4: A government can overturn the Tribunal's determination (eg, not
approve the grant), in the national or state interest (para. 39)
In making its determination, the Tribunal must have regard to the "special
attatchment" matters set out in para. 37, see above.
There is also "expedited procedure" (paras. 41 - 47), to allow speedy
treatment of exploration licences. The steps are the same as those set out
in A. Above, for dealings before native title has been determined.
These kinds of grants do not extinguish native title (para. 51), and title
holders must be paid compensation for any impairment of native title (para.
52).
COMMENTS ON THE PROPOSALS:
1. As stated in the Eva Valley Statement, there should be no grant over
native title lands without the informed consent of title holders. The
"right to negotiate" in the above Proposals is no substitute for the "right
to veto" - which is also a right to make agreements. Why is it assumed that
there will only be development on native title lands if it is imposed?
2. In particular, State and Territory governments should have no power to
impose development proposals on native title land. This means:
a) Aboriginal people must always be able to choose the Commonwealth
Tribunal to deal with matters affecting their land.
b) State or Territory governments must not have power to overturn
a Tribunal decision.
3. Exploration licences are expected to lead to mining development, and this
is what should be thought about at the beginning. There should be no
"expidited" (speedy) procedure. There should be no "onus" (weight) on
native title claimants or holders to prove that they will not be
disadvantaged by the grant. ALL claimants must be able to object, not just
"registered" claimants.
4. The time periods (30 days, 2 - 4 months) are too short for the necessary
notice, information, advice and discussion. Also, ATSI bodies have an
important role here.
THE COMMONWEALTH'S MABO PROPOSAL FACT SHEET 7 OF 7
EVA VALLEY WORKING GROUP
COMMONWEALTH AND STATE RESPONSIBILITIES
Under the Australian legal system, laws (or statutes) can be made at either
the Commonwealth or the State (or Territory) level. State Parliaments can
make laws on most matters, but the Commonwealth Parliament can only make
laws on matters given to it by the Constitution. A Commonwealth law made on
a matter within its constitutional power is stronger, and will override a
state law.
The most important Commonwealth powers in regard to native title are:
* to make laws for the people of any race where it is thought
necessary to make special laws
* to make laws for acquiring property "on just terms" from any
State or person.
States have pointed out that they, too, have power to pass laws for
Aboriginal people. They have specially argued that they have primary power
in matters of land management - such as granting interests in land, and
setting land aside for public purposes.
In the Mabo Decision, the High Court decided that the Australian legal
system left space for ATSI law on land rights, and that it protected native
titles. But Parliaments can change that law - and even extinguish native
title rights - by bringing in statutes within their powers. So far as
States are concerned, one restriction on their powers in the RACIAL
DISCRIMINATION ACT, made by the Commonwealth in 1975. States cannot make a
law which breaks that Commonwealth Act (ie, by being discriminatory between
races). Only the Commonwealth can change or override that Act - or it can
authorise a State law to override the Act.
WHAT THE COMMONWEALTH PROPOSAL SAYS
The Commonwealth proposes to pass a new Act - the "Native title Act" - to
validate, or to authorise States to validate, grants of interests in land
(freeholds, pastoral or mining leases, etc.) which might be valid if the
land in question turns out to be still held in native title (paras. 3,4 -
and see Fact Sheet 4).
The Commonwealth also proposes to allow State tribunals and Governments a
role in future decisions about -
1) whether native title exists on land in the State, and whether
compensation should be paid for any grant affecting the land (para. 77)
2) whether prospecting and other activities should be allowed on land which
is or may be - under native title (para. 40)
Dealing with these separately:
1) PROOF OF NATIVE TITLE AND COMPENSATION
A State (or Territory) can only deal with these matters if it gets
Commonwealth recognition for the tribunal or other body given the power
under State law to deal with them.
The Commonwealth will only recognise a State body if it meets certain
requirements, including -
* acceptance of the national approach to recognition of native title
* involvement of people with special skills, especially in ATSI
societies
* informal procedures and mediation
* consultation on appointments
* appeals only to the Full Federal Court. (para. 78)
The Commonwealth can withdraw its recognition of such a State body, if the
above requirements are no longer met - in whicvh case the State body can no
longer deal with proof of native title and compensation. (para. 77)
2) MINING ACCESS TO NATIVE LAND
Again, a State (or Territory) can only deal with these matters if it gets
Commonwealth recognition for the tribunal or other body dealing with them,
and recognition will only be given if certain requirements are met,
including -
* satisfactory notification procedures
* acceptable for Aboriginal claimants to object to the mining
grant, and for the objections to be heard
* acceptable provision for mediation and negotiation (paras. 48-
49, 66-67)
A further proposal is to allow States and Territories to make "minor" grants
affecting land over which there is - or may be - a native title, without any
need to negotiate. The Commonwealth says it would only allow this if it was
satisfied that such grants will have a minimal impact on the land (paras.
50, 62).
If a State or Territory tribunal is recognised, that Government has the
power to override its tribunals decision. It could, eg, approve a mining
grant, even if the tribunal ruled against it. If there is no recognised
State or Territory tribunal, only the Commonwealth can excercise these
"override" powers. (para. 40)
The Commonwealth can withdraw its approval for a State or Territory to
carry out the functions affecting native title, and it can also put pressure
on States by validation of titles within their boundaries. (para. 74)
COMMENTS ON PROPOSALS:
1. Aboriginal people are understandably very reluctant to see State or
Territory Governments, their laws or tribunals getting involved in matters
affecting native titles. This is a particular concern where development
proposals are being considered. The right for Aboriginal people to take
matters before the Commonwealth tribunal must be paramount.
2. It is dangerous to make exceptions for so-called "minor" grants. An
exploration licence, for example, is only the first step in what can become
a major mining project, so negotiation should begin at this stage.
3. It is difficult to see how the principles of granting/removing authority
for State bodies to exercise powers and functions under the proposed
Commonwealth law will work in practice.