The Government and the National Farmers Federation are mistaken if they think a few amendments to the Native Title Act can be banged through and pastoralists can sleep securely in their beds in the knowledge they will never be bothered by the issue again.
They have to recognise that native title is immensely complex, that it will not and cannot be made to go away, and that will require time and resources to sort out. This week the National Farmers’ Federation came away from talks with the Government well-pleased at the direction of government policy; whereas Aboriginal groups are feel quite the opposite.
It is true superficially to say that the Native Title Tribunal has cost a lot of money to date and has not resolved any of the 220 claims made to it with a final confirmation of title. But it is nonsense to say the tribunal has cost $42 million, as the NFF asserts, though I suppose it might come to that if you add all the white consultants, lawyers and advisers fees. But it is more like $14.2 million … less than a dollar a head.
Further, though no definitive title declaration has been made, it is wrong to deduce the tribunal has been ineffective. It has dealt with a very large number of non-claimant applications. These are from people who want to ensure there is no native title claim against land they want to develop. Further it has taken many cases a long way along the mediation process (its essential task). It has established a bank of information, processes and understanding which will enable resolution of native title in the future. The task was never going to be easy; and it would be very wasteful and foolish to radically change things now, even if it were legally possible.
The sticking points have always been mining and pastoral leases. The hysterical assertions of Western Australian Premier Richard Court and others that native title would subsume suburban homes and freehold farms were never possible as even a cursory reading of the High Court’s Mabo decision shows.
The real issue has been what happens in a contest between two titles that are less than freehold or ACT-type leasehold … such as between native title and mining rights or grazing rights.
On its face, the miners should be more easily accommodated than the pastoralists. Frequently they use only small amounts of land, extract the ore and go. The pastoralists and native-title claimants, on the other hand, usually want long-term, exclusive rights over the same land. However, at present it is the miners who have most to lose. They are being stopped from any activity until native title issues are sorted out. One the other hand, no pastoralist anywhere has been prevented from continuing to graze in the usual way since the Mabo case was decided. But the uncertainty remains.
The difficulty is that Labor’s Native Title Act deliberately left ambiguous the question of whether a pastoral lease extinguishes native title. It was put firmly in the too-hard basket.
The NFF would like a swift High Court decision (presumably in pastoralists’ favour) to resolve the question. Alternatively, it would like legislation to do it. Further, it would like legislation to abolish the tribunal, arguing that it has lost its purpose since a High Court constitutional ruling stripped it of judicial power, which enabled it to make binding rulings on property rights.
Without the tribunal, though, courts would have to rule on every case. The courts (with their hideous costs and delays) are incapable of dealing with all 220 cases. They simply have to be mediated. Alas, the Constitution forbids the same body acting as a mediator and as a definitive judicial ruler.
Even if the Government and the Senate were silly enough to agree with the NFF’s plan to abolish the tribunal, they cannot abolish native title. It is a fact of the common law. Usually the common law can be legislated away, but the common law of native title cannot … at least not without huge costs.
The Commonwealth cannot take away native title rights without offending the constitutional requirement not to take away property except on just terms. It cannot legislate to say pastoral leases extinguish native title without offending that requirement. So compensation would have to be paid anyway. It seems to me the Government would be more sensible to get the pastoralists to negotiate a settlement on shared land use rather than face monetary compensation. At least a land-use arrangement has some permanence and can help reconciliation. Money, as we have seen in the past 25 years, is temporary.
Nor can the states take away native title by legislation. State legislation attempting this would be inconsistent with the federal Racial Discrimination Act and therefore constitutionally invalid.
Suggesting changes to the Racial Discrimination Act to allow it are fanciful.
In short, the two NFF pleas … that pastoral leases override native title and that the Native Title Tribunal be abolished … are virtually impossible. The NFF’s only hope is if the High Court rules that as a matter of common law, a pastoral lease extinguishes native title. Even so, there are many sorts of pastoral leases and it would take many cases to get certainty. Moreover, any post-1975 issuance of pastoral leases by a state and certainly any post-1992 issuance might be a breach of the Racial Discrimination Act and subject to a compensation claim. Again, mediation is preferable.
And that mediation has to be properly resourced. There are also disputes among competing Aboriginal groups … large caused by white dispersal and re-settlement policies … that will take time and money to sort out.
There are no magic wands to be waved. The best way for pastoralists to get certainty is through negotiation.