Does the Australian Government's Native Title Bill conflict
with the Convention on the Prevention and Punishment of the
Crime of Genocide?
The Australian Parliament is to begin the debate of
Government's Native Title Bill on tuesday 23 November. A vote
in the House of Representatives is expected on thursday and
the Bill is expected to be introduced into the Senate on 7
December.
The Bill contains a package of measures which represent, in
part, the Government's response to the Mabo decision of the
Australian High Court.
In that decision, on the 3 June 1992, the High Court found
that the common law of Australia could recognise a form of
native title. The doctrine of terra nullius, which has been
asserted to be the basis upon which Anglo-Australian
sovereignty rested since 1788, was found to be no longer
appropriate.
The High Court decision turned on a distinction between
sovereignty as involving ownership of the country and
sovereignty as involving ownership of the land. Whatever the
basis for the European powers proclamation of sovereignty over
the lives and living countries of First Peoples, this did not
automatically gain the Crown ownership of the land.
Under the new rules proposed by the High Court, native title
was extinguished bit by bit across Australia as the Crown
issued title to others and to the extent that the use under
the Crown title's was inconsistent with the continued
enjoyment of traditional rights.
PATENTLY THE RIGHT RULE.
Only the Crown has the power to extinguish native title.
Chief Justice Brennan said:
...the exercise of a power to extinguish native title
must reveal a clear and plain intention to do so, whether
the action be taken by a Legislature or by the Executive.
This requirement, which flows from the seriousness of the
consequences to indigenous inhabitants of extinguishing
their traditional rights and interests in land, has been
repeatedly emphasized by courts dealing with the
extinguishing of the native title of Indian bands in
North America.
He continued:
It is unnecessary for our purposes to consider the
several juristic foundations -proclamation, policy,
treaty or occupation - on which native title has been
rested in Canada and the United States but reference to
the leading cases in each jurisdiction reveals that,
whatever the juristic foundation assigned by those courts
might be, native title is not extinguished unless there
be a clear and plain intention to do so. That approach
has been followed in New Zealand. It is patently the
right rule.
"The seriousness of the consequences to indigenous
inhabitants" must be the understatement of all time! The
relationship of Australian First Peoples to their living
countries is such that it is an act of violence merely to
consider them as separate. Peoples-and-countries form a
fundamental unit in the cycles of life.
To separate First Peoples from their countries is to commit
both genocide and ecocide. Life, previously well ordered, runs
amok. It is difficult to imagine a more serious crime, short
of outright massacre and torture, against First Peoples. It is
an act of unspeakable cruelty. The lives of First Peoples are
the spirit of the land. Their well-being is the well-being of
the land. Not to embrace them is not to embrace this country.
That there is a special relationship between First Peoples and
their living countries is now a matter of common knowledge. It
was referred to by the Prime Minister himself in his address
to the nation. The onus of disproof of the assertion that the
relationship with land is of fundamental importance for First
Peoples must fall on those seeking to put other views.
Whatever the situation in the past, it is now common knowledge
and sets the baseline for an adequate definition of reality.
UNITED NATIONS DEFINITION OF GENOCIDE
The 1948 United Nations General Assembly approved Convention
on the Prevention and Punishment of the Crime of Genocide.
Genocide is a crime under international law whether or not it
is committed in times of peace or war. Genocide is not an
internal matter but a matter of international concern.
The Convention defined genocide as:
...any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical,
racial, or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of
the group;
(c) Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction
in part or in whole;
(d) Imposing measures intended to prevent births within
the group;
(e) Forcibly transferring children of the group to
another group.
This reads almost like a synopsis of the history of the
treatment of Australia's First Peoples by the invading
Europeans. We will return to the 'deliberate' aspect of this
definition shortly.
THE VALIDATION PROBLEM
The problem posed for the Anglo-Australian Government by the
High Court's common law recognition of the existence of native
title rights comes from the associated issue of the validity
of titles issued by the Crown.
The recognition of native title introduces a element of
'uncertainty' for investment decisions which are said to
require unambiguous proof of title.
As managers of Anglo-Australian interests, the Australian
Government has moved rapidly to introduce legislation which
will remove the business investment uncertainty. As
Australia's First Peoples already have the common law
recognition (as of 3 June last year) of their rights, they do
not require the Government to pass any Act.
The present rush to get the Mabo legislation through before
Christmas does not originate in any deep concern to alleviate
the long standing suffering of the surviving First Peoples.
Clues to the motivation behind the rush, which will prevent
the proper debate of what could be one of the most significant
pieces of legislation in the Commonwealth of Australia's 90
year old history, may lie with the Prime Minister's comments
in his 'Address to the nation' and in his Second reading
speech, and a clause within the Bill's Preamble:
MR KEATING SPEAKS
In his national address, Mr Keating said, of the Native Title
Bill:
It will, to the extent practicable, preserve native title
from extinguishment and where it is extinguished ensure
just compensation.
The rights of First Peoples which the High Court found could
now be recognised would be preserved only to the extent
'practicable'. Practicable for whom? Who will decide?
>From the Parliamentary broadcast of the second reading speech
(tuesday afternoon 16 November) Mr Keating made this
extinguishment explicit:
Only validated freehold grants, residential, commercial
and pastoral or agricultural leases and validated Crown
actions basically involving permanent public works will
extinguish native title....
I draw attention also to the recording in the Preamble of
the Bill the Government's view that under the common law
past valid freehold and leasehold grants extinguish
native title.
This is very important as it is exactly the sort of thing
judges must take into account when interpreting statute law.
And if First Peoples were to go to court to argue that they
had native title rights to land which has been under Crown
title for many years, in the absence of any other guidance
from the Crown, this is exactly where the judge should be
obliged to look.
The Preamble of the Bill makes reference to the High Court
stating that "the High Court held that native title is
extinguished by valid government acts that are inconsistent
with the continued existence of native title rights, such as
the grant of freehold and leasehold estates.
Justice Brennan said:
Where the Crown has validly alienated land by granting an
interest that is whole or partially inconsistent with a
continuing right to enjoy native title, native title is
extinguished to the extent of the inconsistency. Thus
native title has been extinguished by grants of estates
of freehold or of leases but not necessarily by a grant
of lesser interests (e.g., authorities to prospect for
minerals).
Given the provision to protect the rights of Aboriginal people
in some of Australia's pastoral leases, it could be argued
that they are only partially inconsistent with native title.
This distinction - and the subsequent possible squashing of
common laws rights - seems to be completely lost sight of in
the Native Title Bill.
Clause 14 of the Native Title Bill makes the extinguishment of
native title by the issue of Crown title explicit. It says, in
part:
If a past act is an act attributable to the Commonwealth:
(a) if it is a category A past act other than one to
which subsection 214(4) (which deals with public works)
applies - the act extinguishes the native title
concerned;
The definitions of category A and the Explanatory Memorandum
make it clear that a category A past act covers a grant of
freehold or the grant of a commercial, agricultural, pastoral
or residential or construction of a public work.
Justices Deane and Gaudron said in the Mabo decision:
Like other legal rights, including rights of property,
the rights conferred by common law native title and the
title itself can be dealt with, expropriated or
extinguished by valid Commonwealth, State or territorial
legislation operating within the State or Territory in
which the land in question is situated. To put the matter
differently, the rights are not entrenched in the sense
that they are, by reason of their nature, beyond the
reach of legislative power.
Importantly:
The ordinary rules of statutory interpretation require,
however, that clear and unambiguous words be used before
there will be imputed to the legislature an intent to
expropriate or extinguish valuable rights relating to
property without fair compensation. Thus, general waste
lands (or Crown lands) legislation is not to be
construed, in the absence of clear and unambiguous words,
as intended to apply in a way which will diminish or
extinguish rights under common law native title.
Prime Minister Keating's words in his Second reading speech,
the clause in the Preamble and in the Bill would seem to
provide a clear and unambiguous account of the Government's
intention to remove any doubt that Crown freehold and
leasehold title extinguishes native title rights. (Without
having received a copy of the Bill it is reported that a
section of it will deal with 'Category A' land - which the
Government has proclaimed to have extinguished native title).
DENIAL OF NATURAL JUSTICE?
in some parts of Australia, in the Northern Territory for
example, pastoral leases have been issued since the 1880's
which explicitly state that the rights of First Peoples to
their living countries is protected. They present a very good
case for arguing that pastoral leases do not extinguish native
title. The Native Title Bill unilaterally takes those common
law rights away.
It does so without the genuine and informed consent of the
very people who are being asked to surrender their rights. In
its 'negotiations' with Aboriginal representatives the Prime
Minister and Cabinet have ignored fundamental tenets of both
European and Aboriginal law - a person cannot give away a
right which is not theirs to give away.
While the people talking to the Government may be able to
surrender their rights to land under Crown title, they do not
have any right or power to do so in respect to the rights of
the rest of First Australia. There have been many Aboriginal
voices heard saying that they do not accept the package being
rushed through by the Prime Minister.
To continue to rush this legislation through without
conducting culturally appropriate consultations with
Australia's indigenous peoples is an act of abuse to those
peoples only paralleled by the original violent means of
'dispossession'.
Given the strength of the cultural dictate which ties peoples
to their countries, it would be highly unlikely that First
Peoples would ever agree to surrender their rights to their
countries. It would be a bit like asking to agree to separate
your life from your body.
The Prime Minister has attempted to sell the package on the
basis that it has been acceptable to Aboriginal people. The
voices of First Australia saying "Hang on a minute..." have
been ignored. Mr Keating desperately needs the appearance - if
not the substance of consent - in an attempt to bypass indepth
scrutiny.
THE CLEAR AND UNAMBIGUOUS VOICE IN THE NATIVE TITLE ACT.
The inclusion of these clear words are attributed to a deal
made with by the Prime Minister with the National Farmers
Federation. Much farm land in Australia is held under some
form of lease. Many of these leases were issued before 1975,
which was the year the Racial Discrimination Act was passed.
While the Government has accepted that the application of that
Act, coupled with laws of just acquisition, requires that
compensation be paid for leases issued after 1975. But where
does this leave all those leases issued since 1788?
Prior to the High Court decision in 1992, the assumption of
terra nullius was firmly entrenched in the thinking of State
and Commonwealth legislators. As far as I'm aware, they
foresaw no pressing need to back up the fact that they had
issued titles with a clear and unambiguous statement that
Crown titles extinguished native title. Their view was that
there was no native title.
In my view, the Anglo-Australian authorities ran out of time
to secure Crown titles by making a clear and unambiguous
statement that those titles were intended to extinguish native
title rights on 3 June 1992. Such an expression, either in a
law or other significant source of the expression of the
Government's will, would have bound the hands of any judge
seeking to rule on whether or not pastoral leases (for
example) extinguished native title.
A court case seeking to argue the contrary would have most
likely been a waste of money.
And this seems to be exactly what the Government is seeking to
achieve with its present legislation - to suspend the rules
while it turns back the clock. But time is up - there is no
more time to be bought.
Bearing in mind the requirement that a clear and unambiguous
statement is required to extinguish native title rights, and
bearing in the importance of land for the survival, physical
and mental well-being of Australia's First Peoples, and
bearing in mind the United Nations' definition of genocide, I
argue that the choice before the Anglo-Australian authorities
is preconstrained so that either:
* they can pass legislation which states a clear and
unambiguous intention that the issue of Crown titles
extinguishes native title - while accepting that this
places Australia at odds with the United Nations
Convention on the Prevention and Punishment of the Crime
of Genocide, or
* they can comply with the United Nations Convention on
the Prevention and Punishment of the Crime of Genocide
and refrain from making a clear and unambiguous statement
that the issue of Crown title extinguishes native title.
But they cannot do both. In making a clear and unambiguous
statement that Crown titles extinguish native title the
Government brings in an element of deliberation. While it may
have been possible to argue, previous to Mabo, that the Anglo-
Australian authorities had acted wrongly in separating First
Peoples from their living countries, they could also have
mounted the defence that they did so unknowingly.
Not so once they have passed an Act which explicitly states
that Crown titles extinguish native title. A deliberate act of
Government will have taken place which - without going into
detailed examination - will cause serious physical and mental
harm; which will impose conditions which may result in the
physical destruction, in part or in whole, and which (since
life comes from the land) will interfere with the birth
practices of First Peoples.
At the present time the Australian Government would be well
advised to reconsider the inclusion of its clear and
unambiguous statement in the Native Title Bill regarding
extinguishing native title rights. An amendment of the Bill
could allow other parts of it to go through while other issues
are debated and real consultation takes place.
A MATTER OF CONSCIENCE
A strong argument can be mounted that Members of Parliament
must approach the Native Title Bill on grounds of conscience.
The failure of Anglo-Australian legislatures to protect the
well-being of Australia's First Peoples is rapidly becoming a
matter of international concern.
Ideally, the Australian Parliament - representing the
Australian people - would pass a bipartisan motion distancing
itself from the genocide of the past and state that Crown
issued titles do not extinguish native title. In the absence
of such human resolve, however, the Government would be well
advised to remain silent on this issue and allow First Peoples
to pursue their common law rights both through direct
negotiations and, where necessary, through the courts.
c. Bruce Reyburn
22 November 1993