The decision of the Federal Court this week to reject a native title claim by the Wik people puts a little more certainty into what has been a drawn-out process since the 1994 Mabo decision by the High Court.
The Mabo decision upheld a land claim by the Meriam people of Murray Island in the Torres Strait. It said that the common law would recognise title where native people could show continuous possession of the land and a social structure that dealt with land use. However, if the Crown (or later executive governments) dealt with the land in a way inconsistent with that native use, the native title would be extinguished. But if a state government attempted to deal with land contrary to the native title after the passage of the federal Racial Discrimination Act in 1975, it would be an act of racial discrimination, perhaps reversible or compensible. If the federal government attempted to take away native title it could be subject to a claim for compensation under the Constitution which demands that property taken by the Commonwealth only be taken on just terms.
The decision left many unanswered questions. The most vexed ones were to what extent mining and pastoral leases and national parks expunged native title.
These questions were left unanswered by the Native Title Act. That Act put the Mabo case within a legislative framework using the Commonwealth’s power with respect to Aboriginal affairs granted in the 1967 referendum. (Incidentally, the Commonwealth could have enacted such legislation irrespective of the Mabo case, but never found the political will to do so.)
The Native Title Act deliberately left the questions unanswered. The Federal Government wanted the courts to provide the answer that native title was extinguished without carrying the political opprobrium of doing the job itself. The ambiguity gave an opening to Western Australian Premier Richard Court to make extravagant assertions that the Act was costing his state millions, when there was no evidence that one pastoralists sheep or steer had been moved.
Last week’s case and one late last year now make it fairly plain that pastoral leases extinguish native title. The Wik case also rules out compensation for the granting of pastoral leases. The case of mining leases, however, is not so certain.
Even so, the security of the mining leases themselves is not in doubt. All that is in doubt is whether they extinguish native title. The answer is probably not. But that should not be of huge concern to miners. Miners want to extract and move on. Their activity is usually compatible with native title, though disagreement over sacred sites and water use are likely to arise, particularly because in the vast tracts of sparsely populated Australia mineralisation so often occurs in precisely the unusual geologic formations that give rise to sacred sites and that water is essential to both Aboriginal living and the activity of mining.
However, significant parts of the mining industry have dealt with the issue on the ground, wisely not waiting for government, courts or Courts (SUBS:correct). Several mining companies have negotiated or are negotiating arrangements with native holders that will enable mining to go ahead, preserve native use of the land and at the same time provide jobs and educational opportunities.
Despite all the huffing, puffing and exaggeration, Mabo and the Native Title Act will be restricted to allowing Aboriginal people who have had continuous possession to continue that possession. The moral case for that should be beyond argument. No non-Aboriginal is going to have to surrender land to Aborigines, despite all of Mr Court’s hyperbolic electioneering.
In short, Mabo and the Native Title Act, while symbolically important, do not change much. They merely confirm the right of Aborigines to continue living in those places where they have been continuously living for generations. And that is the lesson of last week’s case. Aboriginal welfare is more than land rights. It is a message as important for Aborigines (some of whom have argued in the past that once they have land all will be well) as non-Aborigines.
The challenge for Australian society is to bring Aboriginal infant mortality, literacy, employment levels, education and health to levels comparable to the level in Australia as a whole.
Sadly, there have been some disturbing elements of the native title process. The hyperbole, rather than the facts have caused uncertainty, particularly in the mining industry. And there has been an extraordinary amount of hyperbole over the amount of money spent for what has wrongly been seen as little result.
It is true that not one definitive ruling has been made by the Native Title Tribunal over a contested native title claim. However, a large number of applications involving a lot have land … uncontested Aboriginal claims and applications for declarations that there is no native title over certain parcels of land … have been dealt with satisfactorily by procedural means.