Far too much stake was put on the High Court’s Hindmarsh Bridge decision before it was brought down. It was regarded as a pointer to what the High Court might do in any constitutional challenge to the Government’s Wik legislation that is now before Parliament. The Labor Party painted it that way and got it wrong. Now the decision has been brought down the Government has painted it that way, and again it is no such thing.
Indeed, the Government greeted the decision like the final siren in a football match. A note indicating the result was passed to Prime Minister John Howard while Parliament was sitting. The body language of the front bench was like that of football supporters. Bridge Builders 1 Aborigines 0, the score read. And they were going to win next week’s match, too, no doubt.
But they had not read the reasons for the decision.
The two political sides thought the challenge to the Hindmarsh Island Bridge Act was about whether the Commonwealth Parliament has the power to enact special laws for the detriment of Aboriginal people under the 1967 amendment to the Constitution, as well as the obvious power to enact laws for their benefit.
They thought the Bridge Act was an Act for Aboriginal detriment because it would allow a bridge to be built in areas Aborigines say is sacred.
The Coalition thought that if the High Court ruled the Bridge Act was valid then the Commonwealth could legislate for the detriment of Aborigines so the Wik legislation taking away rights to negotiate for native Title would be valid. Labor thought that if the Bridge Act was invalid then the Wik legislation would be invalid, too.
But it was not like that.
Although it took 60 pages to say it, the message of the High Court in the Hindmarsh Bridge case was quite simple: what the Commonwealth giveth; it can also taketh away.
The Heritage Protection Act gave the Minister the power to protect indigenous heritage anywhere in Australia by forbidding building. It was for Aboriginal benefit, and was obviously valid. Then Aboriginal Affairs Minister Robert Tickner applied the Act to the Hindmarsh Bridge.
All the Bridge Act did was to repeal the Heritage Protection Act in its application to Hindmarsh Island.
If the original legislation is valid, its repeal or partial repeal must also be valid. End of story.
They did not even rule whether the Bridge Act was detrimental to Aboriginal interests or whether the 1967 constitutional amendment gave power to make laws detrimental to Aboriginal interests.
In short, the Wik legislation may or may not be valid. We will just have to wait. It is a very different case from the Bridge case.
The Bridge Act took away something beneficial given by earlier Commonwealth legislation. The Wik legislation is a different thing. It deals with native title. Native title, of course, is not something granted by the Commonwealth Parliament. It is a creature of the common law, as ruled in the Mabo case. If Parliament takes away part of indigenous people’s common law rights, the High Court might have to rule whether that is for indigenous detriment and then it might have to rule whether the 1967 amendment gives the Parliament the power to do such a thing.
In the Bridge case, two judges hinted or stated that it had no such power. Two judges hinted that it did. Two were silent and one had disqualified himself.
Next week’s match is not a foregone conclusion. The Bridge Act does not mean the Government can be assured its Wik legislation as it stands is valid.
The Government would be better advised to work more closely with the other players in the Senate to achieve its aim of getting more workable native title legislation in a less divisive way.
It is apparent that the Native Title Act should be amended. When it was passed in the term of the Keating Government the question of native title co-existing with pastoral leases had not been determined, and most thought that pastoral leases would extinguish native title. However, in the Wik case it was ruled that they can co-exist, but if there were any conflict, the pastoral lease would take preference.
That decision has created a great deal of uncertainty and made a more streamlined determination of who has what title where much greater. Before Wik, it was thought that indigenous claims could only affect unalienated Crown land, land already occupied by indigenous people and national parks. There was no pressure to crystallise rights quickly. But with land subject to pastoral lease available to native title claim and some questions over mining rights, the delineation of the rights of pastoralists, miners and indigenous people becomes more urgent.
The greater urgency, however, does not mean that indigenous rights should take a back seat. Part of the fury since the Wik decision has stemmed from an incorrect assumption on the part of pastoral lease-holders that their leases give them ownership and the equivalent rights of freehold. Any indigenous presence on “”their land” is therefore resented. But the lease permits only a list of uses, not general use. To the extent that indigenous use is compatible with those uses it is to be allowed under the Wik decision and the common law.
At present there are several sticking points between the Government and the Labor Party, minors and independents in the Senate. These are the sunset clause for claims, whether the Native Title Act should be subject tot he Racial Discrimination Act and the right to negotiate with respect to any development claims on land that could be subject to native-title claims, in particular mining claims.
At present the parties are poles apart. In the face of the Hindmarsh Bridge case it would be sensible if some central course could be steered.