Jaws dropped when the High Court’s Hindmarsh Bridge decisions came down this.
The politicians and the press gallery were hoping to get a sign whether the Government’s Wik legislation is constitutionally valid. Instead, they thought, the High Court copped out and ruled on a technicality, leaving the Wik question still in the air.
But it seems to me that this week’s Bridge decision gives a huge constitutional boost to the Wik legislation.
The major political parties and the political journalists thought the court would rule on whether the Commonwealth had power to make laws which are nasty to Aborigines as well as laws which are nice to them.
The Hindmarsh Bridge Act allows a bridge to be built on land Aborigines regard as sacred, so it is a law that is nasty to Aborigines, they thought. If the High Court struck it down, it meant Wik (a law also nasty to Aborigines on this reasoning) would be struck down with it. If the High Court allowed the Bridge Act, it meant Wik would be allowed.
But it is not that simple.
The High Court dodged the question on whether the Commonwealth has power to make nasty laws as well as the more obvious power to make laws that are helpful to Aborigines.
Instead, it ruled as follows. It said the Heritage Protection Act was a valid Act that allowed the Minister to stop development that threatened Aboriginal heritage. All the Bridge Act did was to repeal the Heritage Act’s application to a couple of chunks of land around Hindmarsh Island. If the Commonwealth has power to enact the Heritage Act, it must have power to repeal all or part of it. If the Commonwealth can give, it can take away.
That’s why the jaws dropped. The court did not even look at the question of whether the Bridge Act was a law nasty to Aborigines. (Some judges hinted or stated hypothetically about Commonwealth power, but only as asides.)
So is the Wik legislation valid?
In essence, the Wik legislation is an amendment to the Native Title Act. That Act was passed after the High Court ruled in the Mabo case that indigenous people have a common-law native title to all land in Australia expect where acts of the Parliament and the Crown have extinguished native title by giving rights over the land to others. At the time, it was widely thought that native title could not survive the grant of a pastoral lease. Not so, ruled the High Court in the later Wik decision.
That raised a whole lot of political and economic matters. Before Wik, everyone thought native-title claims were restricted to vacant Crown land and national parks. There was no economic urgency. Now there is.
So the Government wants to change the Native Title Act. There are two major sticking points with constitutional significance: the Government’s plan to take away the right to negotiate and its demand for a six-year sunset clause on claims under the Act. (The other sticking point — that the Act be subject to the Racial Discrimination Act — is more a political one.)
The right to negotiate applies when anyone tries to develop or use land (in particular, mining companies) that is subject to native title. With the right to negotiate comes a right to hold up the development until the negotiation is complete or the Native Title Tribunal rules otherwise.
The popular view is that the two changes are detrimental to Aborigines and are not supported by the Commonwealth’s constitutional power to make laws “”with respect to the people of any race, for whom it is deemed necessary to make special laws”.
Those words in the Constitution originally said “”except for people of the Aboriginal race”, but the exception was removed by the 1967 referendum so that the Commonwealth, it was thought, could make laws for the benefit of Aborigines. But as the original section was there for the Commonwealth to control other races in a racist way, it could be argued the section allows detrimental laws. On the other hand, the 1901 meaning may not be applicable in a modern context. But this does not affect the Wik legislation.
The Wik legislation should be seen as a partial repeal of the Native Title Act, in the same way as the Hindmarsh Bridge Act was a partial repeal of the Heritage Protection Act. Some have argued that the two are not the same because the Bridge Act took away something given by the Commonwealth; whereas native title is a common law right and to take it away would be detrimental to Aborigines and beyond power. No so, in my view.
The Native Title Act just added a whole lot of bells and whistles to common-law native title rights. In its own words it “”protects” native title by: prohibiting any extinguishment other than through the Native Title Act; providing a system of registration of claims and granted claims; and allowing a right to negotiate before development takes place.
If the Commonwealth can legislate to grant those things to protect native title, it can legislate to take them away. It may be immoral, but it is not unconstitutional.
It can remove the legislative protections for native title, provided it does not attempt to remove native title itself (without paying just compensation for removing a common law right).
Of course, there is a danger for the Government and for society as a whole. If some of the legislative protection for native title is removed, native title claimants will return to the common law. Rather than negotiating under the Native Title Act under the guidance of the tribunal, they will go case-by-case to the common law to seek injunctions to protect their title over mining and other development. It could be very messy.