NSW bill blocks native title claims, says Dowd.
by Elizabeth Jurman
A former NSW Attorney-General, Mr John Dowd QC, has attacked
the State's proposed Mabo legislation, calling it a failure
that would make successful claims of native title almost
impossible.
NSW's Native Title's Bill had serious defects that would work
to discriminate against Aborigines, Mr Dowd, the chairman of
the Australian section of the International Commission of
Jurists, said yesterday.
"The principles of Mabo which were articulated by the High
Court have been overridden by this bill," he said.
"Because of its serious limitations, it is unlikely that any
native title claim would succeed in NSW."
"In fact, the bill appears to be about limiting the rights of
Aboriginal people."
Mr Dowd said the bill purported to "disapply" the
Commonwealth's Racial Discrimination Act, suggesting, "that it
is the intention of the State legislation to discriminate on
the grounds of race, creating a precedent for future
legislation".
The president of the NSw Anti-Discrimination Board, Mr Steve
Mark, said that this would be "a dangerous precedent".
Echoing the Commission of Jurists' concerns, Mr Mark said he
thought the bill, as stated, would make it virtually
impossible for Aborigines to successfully claim any land.
Mr Dowd said NSW Aborigines would not even be able to lodge a
claim unless they formed a company first.
The proposed legislation also gave inordinate power to the
Registrar of the Land and Environment Court, who "could refuse
native title before the claim goes to the court, and before
any evidence is heard about claims."
Mr Dowd said the commission was also concerned about the
bill's narrow definition of native title.
"The State's legislation requires Aborigines to have had
unbroken occupation of the land in question," he said. "This
means that their claims will fail even where they have been
wrongfully and forcibly removed from their land. Dispossessed
Aborigines therefore cannot be compensated."
"Where native title was recognised, Aborigines could not put
the land to anything but "traditional uses", according to Mr
Dowd.
A spokesman for the Premier said yesterday that the draft
legislation had been released for discussion and submissions.
"The final shape of the bill will be influenced by what the
Federal Government comes up with," he said.
However, according to mr Dowd, the bill is not a good starting
point.
"If the native title bill is an attempt to confront the moral
and legal issues surrounding the 200 years of dispossession of
Aboriginal peoples, it has failed."
The State's draft legislation was released in August, with Mr
Fahey saying the bill would end uncertainty for investors and
industry and ensure that claims for native title were dealt
with fairly and quickly.
The legislation ensures that all existing titles are valid and
unaffected by the existence of native title.
And public access to beaches, parks and recreation areas of
NSW is guaranteed, although native title may exist under the
Mabo ruling.
Under the legislation, all claims for compensation and native
title would be determined by the Land and Environment Court
and no compensation would be paid for native title that was
impaired or extinguished before October 31, 1975.
Compensation would be assessed as it would be if the land had
been compulsorily acquired. Where native title had been
affected by a mining title, provisions in the mining Act for
determining compensation would apply.
(ends)