The Greens (WA)'s Current Position
on the Native Title Bill
30th November 1993
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Earlier this year, the two Greens (WA) Senators identified the
native title issue as the single most important and difficult
matter with which they would have to deal with. This was not
only because they could, depending on events. decide the fate
of the legislation, but also because of The Greens (WA) strong
commitment to Aboriginal self-determination and land rights.
Over the last six months The Greens (WA) Senators have spent a
great deal of time talking with Aboriginal people and
communities throughout Australia and particularly in Western
Australia.
On 24th November, the Greens (WA) Senators delayed a decision
on whether the Native Title Bill 1993 will be debated before
Christmas. The Senate Standing Committee on Legal and
Constitutional Affairs is due to report on the Bill on 9th
December and on that day the Greens (WA) Senators will
consider sending the Bill to a Select Committee. That
Committee would then report in mid-February. This would allow
time for greater consideration of the legislation by
Aboriginal groups.
The Greens (WA) Senators may also move to introduce a piece of
'holding' legislation that would nullify any of the negative
legal consequences of delaying the Government's legislation.
The Greens (WA) Senators are well aware of the potential
political consequences of delaying the Native Title Bill 1993.
It is possible that any delay in passing the bill would see a
fall off in support fro the Prime Minister's position and
therefore he would not be able to pursue the current package.
We believe the issue is too important to pass legislation in a
hurry. Despite apparent agreement between the Government and
some Aboriginal negotiators there are many who express concern
about aspects of this legislation. The views of these
Aboriginal people have been silenced through pressure to fall
into line with the Government's position. We believe that by
showing our hand people with general concerns may be empowered
to express their concerns and that the Government will listen
to arguments for further improvements.
THE GREENS (WA) INVOLVEMENT WITH THE ABORIGINAL NEGOTIATORS
In mid-October The Greens (WA), Australian Democrats, ATSIC
and a group of Aboriginal people agreed on a 'bottom-line'
that any legislation arising from the High Court decision on
Native Title would have to reach if it was to be passed trough
the Senate with Democrat and Greens support. This bottom line
was based on several main issues:
* no 'roll-back' of the Racial Discrimination Act 1975;
* only Federal tribunals to hear claims of native title;
* native title should be allowed to co-exist with other titles
except where there is an inconsistency;
* right to consent over developments such as mining; and
* the Social Justice package should be outlines in the Prime
Minister's second reading speech on this legislation.
Two weeks later some of those Aboriginal people reached an
agreement with the Prime Minister on the Native Title Bill
1993.
The current legislation does not reach the agreed 'bottom-
line' and therefore The Greens (WA) are free to seek to amend
or, eventually, reject the Government's legislation.
THREE TESTS OF THE FEDERAL LEGISLATION
Leading up to the introduction of the legislation, The Greens
(WA) Senators developed 3 tests to base their assessment of
the Native Title Bill 1993.
* Will any group of Aboriginal or Torres Strait Islander
people be disadvantaged by this legislation?
As a matter of principle, no Aboriginal or Torres Strait
islander person or groups should be worse off under any
legislation arising from the High Court on Native Title.
* Does the legislation leave open the right of Aboriginal
people to negotiate or make further gains arising form the
High Court's decision?
No legislation should rule out further development of common
law through Australia's court system.
* Has there been enough consultation with Aboriginal and
Torres Strait people and scrutiny of the legislation?
As this legislation primarily affects Aboriginal and Torres
Strait Islander people throughout Australia, there should be
as much consultation with those people as possible and
thorough scrutiny of the legislation to ensure that these
people are aware of the consequences of it.
CURRENT PROBLEMS WITH THE NATIVE TITLE BILL 1993
Below are some of the major problems that The Greens (WA)
Senators haver identified with the Government's Bill.
1. How the Bill is connected to and operates with the Racial
Discrimination Act 1975
The Prime Minister argues that the whole of the Native Title
Bill 1993 is to be seen as a special measure within the
meaning of the Racial Discrimination Act 1975 and thus an
extension of the RDA.
If any provision of the Bill is discriminatory against
Aboriginal and Torres Strait Islander people, and the Bill as
a whole is not found to be a special measure, that provision
is likely to be read as overriding the RDA.
The clearest example of this is the validation of past State
and Commonwealth laws which are invalid to the extent that
they apply to native title. The Bill may then validate State
laws dealing with fishing and hunting rights. By doing so it
may extinguish native title rights to those resources. This
would have a dramatic effect on the native title rights of
many coastal communities.
A clause must be inserted in the Bill to ensure that, in the
event of any inconsistency between it and the RDA, the RDA
prevails.
* Without such a clause the Bill stands to fail The Greens
(WA)'s test 1.
2. Rights to Resources
As has been said the Native Title Bill 1993 validates
potentially discriminatory laws despite an assurance from the
Government that it would review all of its laws to remove any
inconsistency with native title and to encourage the States to
do likewise.
the validation of laws based on Terra Nullius is unacceptable.
Clause 197(1) states that:
Subject to this Act, a law of the Commonwealth, a State
or Territory may confirm:
(a) any existing ownership of natural resources by
the Crown in right of the Commonwealth, the State or the
Territory, as the case may be; or
(b) any existing right of the Crown in that
capacity to use, control and regulate the flow of water;
or
(c) that any existing fishing access rights prevail
over any other public or private fishing rights.
The clause is either meaningless or it is potentially the most
discriminatory provision ever enacted in Australia,
There must be a provision in the Bill which gives an
opportunity for native title holders to participate in the
management of resources where native title rights are
restricted by environmental or other controls.
* Without such a provision the Bill fails The Greens (WA)'s
tests 1 and 2.
3. Rights to Negotiate
The rights of Aboriginal and Torres Strait Islander people to
negotiate only occur when a new mine is proposed, yet there
are many more land use decisions that can have a far greater
impact on native titleholders.
For instance there is no right to negotiate provided to
aboriginal and Torres Strait Islander people when land is
being compulsorily acquired or when land is being set aside
for a town site, State forest or a national park.
There needs to be provision made in the Bill for much wider
rights to negotiate.
4. Native Title Attributes.
The requirement in the Bill for the tribunal to list the
attributes of a particular native title is unnecessary,
intrusive and unworkable. It laos fails to understand the
connection that Aboriginal and Torres Strait Islander people
have with the land.
The Bill must limit the trauma Aboriginal and Torres Strait
Islander people go through to prove each and every attribute
of a native title claim.
5. Reversal of the onus of proof.
The Bill requires that a native title applicant prove that
native title has not been extinguished. Also an applicant must
satisfy both the registrar and the tribunal that native title
has not been extinguished. In the interim no protection is
provided to a claimant.
Once the is a prima facie case for a native title claim, the
onus should then be taken off the claimants to prove their
case. Interim protection through injunctions or some other
method should be possible.
6. Titles held by corporations.
The Bill provides for native titles to only be held by a
corporation. Under this regime Eddie Mabo would have failed to
make his claim as this was one of the crucial arguments in his
case.
Aboriginal and Torres Strait Islander people should be allowed
to hold their title in accordance with their own laws and
customs in line with the High Court decision.
7. Validation dates
The Bill validates any past acts up to 31st December 1993.
This validates even where there has been a breach of the
fiduciary duty of the government concerned. Any breach of
fiduciary duty should be handled through the Courts and not
given blanket validation by this Bill. equally any acts taken
by governments after the day of the High Court decision should
not surpass due process.
Existing titles should only be validated between the day of
commencement of the Racial Discrimination Act, 31st October
1975, and on the day the High Court decision in Mabo and
Others (No.2) was handed down, 3rd June 1992.
8. Social Justice Package.
Only one reference is made to any aspect of the promised
social justice package in the legislation. The Bill makes
reference to a land acquisitions fund but provides no details
of how it will operate and how much money will be allocated
for this purpose.
For more than 90% of Aboriginal and Torres Strait Islander
people. it is a comprehensive social justice package which
holds the most promise.
There must be far greater details provided of the promised
social justice package including funding figures, before the
Native Title Bill 1993 is passed.
NEED FOR MORE CONSULTATION AMONG ABORIGINAL AND TORRES STRAIT
ISLANDER PEOPLE
During The Greens (WA) talks with Aboriginal and Torres Strait
Islander people it became obvious that there was a severe lack
of even a basic knowledge of what the mabo issue was about and
little understanding of what effect the Federal legislation
would mean to them. It is grossly patronising for the
parliament to pass into law the most significant measure
affecting Aboriginal and Torres Strait Islander people without
more consultation.
A holding bill to allow for more consultation.
The Greens (WA) have proposed to introduce a holding bill,
called the Native Title (Status Quo) Bill 1993, which would
seek to freeze any move by State or Territory Governments to
extinguish or alter the common law native title rights until
suitable comprehensive native title legislation has passed the
Federal Parliament. The Greens (WA) envisage that a status quo
Bill would only need to be in place for up to 4 months.
The bill would require the support of the Government in order
to pass through parliament.
Where to from here?
The Native Title Bill 1993 is due to be debated in the Senate
on about the 9th December. At that stage The Greens (WA)
Senators will decide whether to send the legislation to a
Select Committee for further inquiry and thereby allow time
for more talks and discussion among Aboriginal and Torres
Strait Islander people.
If not the Bill will be debated, amended and voted on prior to
Christmas.
If you would like more information or you would like to pass
on your comments contact:
Senator Christabel Chamarette
PO Box 137
West Perth 6872
Ph 09 481 1244 Fax 09 322 1048