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Mabo, Wik and the 10-point plan

From: Teaching History, Journal of the History Teacher’s Association of NSW, Vol. 32 No.1 1998

THE WIK CASE

The Wik people of Cape York in Queensland claimed that in spite of their traditional lands being subject to pastoral leases, they retained Native Title rights to their lands. Eventually their case went on appeal to the High Court of Australia.

The High Court handed down a judgement, the Wik High Court judgement, on 23 December 1996 which held that a pastoral lease did not always extinguish Native Title, that in some cases Native Title rights could survive the grant of a lease.

This judgement was based upon historical documents from 1848 which advised the Governor of New South Wales that "…leases granted for this purpose give the grantees only an exclusive right of pasturage for their cattle... but are not intended to deprive the Natives of their former rights to hunt over these districts… in search of subsistence, in the manner to which they have been... accustomed".

The judgement said however, that if there was any conflict between the rights of the pastoralist lease holder and the Native Rights holder, then the pastoralist's rights would always be upheld.

Why not just extinguish Native Title on pastoral leases?

Native Title is a property right. Property rights are guaranteed by the Australian Constitution and can not be taken away without the payment of ‘just’ compensation.

The role of the Racial Discrimination Act

The 1975 Racial Discrimination Act ensures that governments, Commonwealth, State and Territory, must treat Aborigines in the same way as all landholders.

Compensation?

The potential cost of compensation for extinguishment of Native Title on pastoral leases remains an unknown. The Prirne Minister has promised that States and Territories will receive help with compensation.

Objections to Wik

  • Pastoral lease holders occupy 42% of the Australian continent. They once believed they held rights to fully manage the land, subject to the terms of their lease, the various Land Acts and the general law
  • They claim that the Wik High Court judgement has complicated and confused the terms under which they operate as "...the land's custodian, charged with the responsibility of productively using the land to its best advantage"
  • They will now have to negotiate with any Aboriginal people who can prove a Native Title right to a pastoral lease if they want to do anything beyond the scope of their lease
  • They claim the value of their properties will be affected
  • Governments will be liable for payment of compensation if any Native Title rights on pastoral leasehold land are affected

MR HOWARD'S TEN POINT PLAN

1. Validation of acts/grants

The validity of acts or grants made on non-vacant crown land since the Native Title Act will be guaranteed by law.

2. Extinguishment of Native Title on "exclusive" tenures

"Exclusive" tenures such as freehold, residential, commercial and public works (in existence on or before 1 January 1994) would be confirmed by state and territory laws.

3. Government services

The provision of government services to land on which Native Title may exist would now be made easier.

4. Native Title and pastoral lease

Native Title rights over land held under agricultural and pastoral leases would be permanently extinguished if they interfere with the rights of the leaseholder.

Activities other than farming and grazing would be allowed on pastoral leases, even if Native Title exists, provided the dominant purpose of the lease remains primary production.

5. Statutory access rights

If those who register a Native Title claim can demonstrate that they currently have access to land held under a pastoral lease, access to that land will be guaranteed by law until the Native Title claim is settled.

6. Future mining

For mining on vacant crown land:

  • the registration "test" for a Native Title claim would be more difficult
  • there would be no negotiations over mining exploration
  • only one Native claim for negotiation would be allowed for each mining project

For mining on "non-exclusive" tenures, such as current or former pastoral leases:

  • the right to negotiate would continue to apply until State and Territory governments provided arrangements acceptable to the Commonwealth government
  • compensation would take account of the currently co-existing Native Title rights

7. Future development

For vacant crown land outside cities and towns:

  • the registration "test" for negotiation of a Native Title claim would be more difficult
  • there would be no negotiations over acquisitions for government-type infra-structure
  • For compulsory acquisition of Native Title rights on other "non-exclusive" tenures, such as current or former pastoral leases or national parks:
  • the right to negotiate would continue to apply until State and Territory governments provided arrangements acceptable to the Commonwealth government
  • compensation would take account of the currently co-existing Native Title rights
  • future management actions for national parks or forest reserves would be allowed forfuture activities such as taking of timber or gravel on pastoral leases would be allowed for

8. Water resources and airspace

The ability of governments to regulate and manage, surface and subsurface water, offshore resources and airspace, and the rights of those with interests in these areas, would be put beyond doubt.

9. Management of claims

For new and existing Native Title claims there would be:

  • a more difficult registration "test" for negotiation of a Native Title claim
  • amendments to speed up the processing of claims
  • encouragement for States and Territories to deal with claims
  • a sunset clause within which claims had to be made

10. Agreements

Measures would be introduced to encourage the negotiation of voluntary but binding agreements as an alternative to formal Native Title agreements.

THE ABORIGINAL POSITION

Aborigines called for the negotiation of co-existing rights and rejected the upgrading of pastoral leases.

Upgrading of pastoral leases without satisfactory legal measures to support Aboriginal property rights was described as unfair.

Compensation for loss of Native Title rights was also rejected because compensation did not take account of the public policy issues raised by pastoral leases becoming defacto freehold.

Scientists and conservationists supported Aboriginal concerns about the proper future management and environmental sustainability of Australia's rangelands.

(Adapted from the Sydney Morning Herald, 3 May 1997)

Reproduced with the permission of the History Teacher’s Association of NSW.


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