MABO: WHY THE NFF SAID 'YES'
[] Could native title exist on freehold land?
No. The grant of freehold title extinguishes native title.
[] Could native title exist on pastoral leases?
It is necessary to consider pastoral leases in three
categories: leases which may be invalid, valid leases where
there is an existing statutory reservation of Aboriginal
interest (WA, SA, NT), and valid leases where there is no
existing statutory reservation of Aboriginal interest (all
other States).
* Leases which may be invalid.
The Commonwealth legislation will allow validation of any
pastoral lease which is found to be invalid, provided that
lease was issued at any time prior to 31 December 1993.
The act of validation will completely extinguish native title
from the original date of grant.
* Valid leases where a statutory reservation of aboriginal
interest already exists.
This is the case in WA, SA and the NT.
Existing statutory reservations of Aboriginal interest will be
preserved.
Those existing Aboriginal interests could not be extended
except by State statute.
The Commonwealth legislation will leave open whether such
interests remain statutory grants of the Crown, or are native
title rights. This question is likely to be tested in the
courts. Advice to the NFF and the Federal Government (NOTE
WELL -R) is that existing Aboriginal interests are not native
title rights, and exist only by statutory grant of the Crown.
* Valid leases where there is no statutory reservation of
Aboriginal interest.
In the Mabo judgement, four of the seven judges expressed a
general view that the grant of a lease extinguishes native
title. Three judges expressed no view.
Legal advice to the Commonwealth, States, NFF, Aboriginal
interests and the mining industry is that the valid grant of a
pastoral lease is almost certain at common law to extinguish
native title.
The preamble to the legislation says:
"The High Court has:
(c) held that native title is extinguished by valid
government acts that are inconsistent with the continued
existence of native title rights and interests, such as
the grant of freehold or leasehold estates."
The Aboriginal Negotiating committee advised the Prime
Minister on 31 October in the following terms:
"For the record, we should say that it is not the
intention of our organisations to seek to test the
validity of pastoral leases issued before 1975 fro the
simple reason that no purpose would be served by that
course (!No purpose - tell it to the people who daily
contest the validity of those leases in the Northern
Territory -R) - given that in the unlikely event of the
action succeeding the consequence would be that the Act
would immediately validate, and in so doing, extinguish
any remnant native title.(Sounds like a White lawyer
talking to me -R) Our agreement has provided the
practical outcome that Aboriginal people require, namely
a continued right of currently enforceable access and
use, and the right to seek to convert to a more secure
title upon acquisition."
It is possible that valid pastoral leases may be tested in
court to decide whether any form of native title remains, even
though there is no support for such action from mainstream
Aboriginal groups.
Once a precedent is established, no similar actions would be
heard by the courts. The commonwealth legislation establishes
that the Register of native title claims would not accept
vexatious claims, or claims over land where native title has
been extinguished.
[] Are stock routes open to native title claims?
No. Stock routes are defined as Public Works, which extinguish
native title.
[] What is the position where a pastoralist voluntarily has
allowed access to his/her property by Aboriginal people?
Nothing changes. Where there is no statutory right of access,
or where the lessee has not agreed to access over an extended
period, there will be no legal obligation to allow access to
Aboriginal people.
However, the legislation contains provision fro regional
agreements between landholders and Aboriginal people. NFF
supports the development of voluntary codes of conduct in
relation to access to pastoral properties, both Aboriginal
owned and non-Aboriginal owned.
Western Australian farm organisations have agreed to work with
Aboriginal interests to develop a voluntary code of conduct on
access to pastoral properties in the Kimberley.
The Cattlemen's Union has established a committee to liaise
with Aboriginal interests on access and other issues in
Queensland.
[] What role has NFF played in the Mabo debate?
NFF believes our primary objectives have been achieved in the
Commonwealth legislation. In our view a national approach is
the most desirable outcome.