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Ten Native Title Predictions

By Bryan Horrigan - posted Thursday, 15 April 1999

The Chinese say that a journey of a thousand miles begins with a single step. Native title law and policy clearly remains at an infant stage of development. On the assumption that prediction is more hazardous but more interesting than hindsight, here are some native title predictions.

The first prediction is that the content of native title rights is likely to be further amplified by Australian courts. The first evidence of that comes with the Federal Court's decision at the end of 1998 in Ward v Western Australia, concerning Indigenous opportunities to share in the fruits of development of native title land as well as rights to make decisions about the use and control of native title land. Remember that the so-called "right to negotiate" in the Native Title Act 1993 (Cth), which is significantly altered by the Commonwealth Government's 10 Point Plan and the Native Title Amendment Act 1998 (Cth), is a creation of statute rather than a native title right under the common law as established in landmark cases like Mabo (No 2) and Wik. If extensive decision-making rights form part of the content of native title rights under the common law, those rights have a legal status which is independent of what might be given to Indigenous people or taken away in changes to the statutory "right to negotiate".

The second prediction is that the next wave of native title litigation over the next decade will concentrate not only upon the content of native title rights and the determination of where native title actually survives in areas of Australia, but also upon the compensation payable to Indigenous people whose native title has been extinguished under land titles granted between 31 October 1975 (i.e. the starting date for the Racial Discrimination Act 1975 (Cth)) and 23 December 1996 (i.e. the date of the Wik decision) and which are also validated (if necessary) under Commonwealth and State native title legislation.


In broad terms, this legislation acknowledges that some land titles granted in that time period might have been granted without proper regard to the interests of Indigenous people who still hold native title, and that those titles might therefore be invalid and need validation to ensure security of title for leaseholders and other recipients of grants of title from governments during that period. As many mining titles are granted over pastoral land, you can see the significance of anyone assuming wrongly before Wik that pastoral leases extinguish native title. That legislation also acknowledges that the price to pay for such validation is compensation for native title holders whose native title is partially or completely extinguished by such validated titles. You do not have to be Einstein to work out that litigation over native title compensation for validation and extinguishment is a "sleeper" issue for governments.

The third (and most hazardous!) prediction is that any High Court challenge to the constitutional validity of the changes to the Native Title Act 1993 (Cth) in the Native Title Amendment Act 1998 (Cth) is likely to fail, because those changes seem to be adequately supported by the "races" power, the "just terms" acquisition power, and ancillary powers in the Constitution. The justification of that assessment is not something which can be pursued here, except briefly. To the extent that the payment of "just terms" compensation is not simply about "what you pay" but also about "how you handle payment", there might be some scope for constitutional criticism on a minor level. In terms of the "races" power, even if that power can only be used to pass laws which are beneficial for Indigenous people (which arguably is contrary to current legal orthodoxy in light of the Hindmarsh Island Bridge case), the current High Court is likely to allow the Commonwealth Parliament a wide margin of error in making that judgment, reserving any judicial second-guessing for extreme situations.

In any case, after weighing all of the features of the native title legislation, it is difficult to make the global political and/or legal judgment that the amended Native Title Act clearly and undeniably is not for the net benefit of Indigenous people, especially in light of provisions clearly advantaging Indigenous people like those concerning Indigenous Land Use Agreements, protection for native title from future actions except under certain conditions, the availability of negotiation or consultation rights, compensation, statutory access rights, and other features. Of course, one can make that judgment and also hold the belief that the 1998 changes to native title laws in Australia increased the protection available to commercial rights and, at the same time, decreased Indigenous rights below the level of rights which the law might have allowed because of Mabo (No 2) , Waanyi, Wik, and the original Native Title Act if left unaltered.

The fourth prediction is that, given the three options of "litigation", "legislation", and "negotiation" to resolve native title disputes, there is likely to be an increased move towards negotiation by a variety of parties because of the new provisions governing Indigenous Land Use Agreements and representative bodies. Nevertheless, there is likely to be some remaining uncertainty in the interim, while Queensland and the other States and Territories introduce their own new native title regimes. While the mainstream mining community generally accepts the legitimacy of the Mabo and Wik decisions in collectively permitting the possibility of native title surviving over leasehold land, the legitimacy and availability of an Indigenous "right to negotiate" as a creation of statute for the benefit of native title parties but not other parties has always been questioned by some elements in the mining, rural, and business communities. The issues here run deep, and the public discussion of them is largely inadequate.

The maintenance of a modified "right to negotiate" regime in Queensland, the transitional delays while Queensland's new regime is progressively introduced, and the absence of uniform approaches so far in all other States and Territories are all a source of ongoing commercial inconvenience for some mining interests. Whatever the other "rights" and "wrongs" of the native title debate, the presence of a statutory "right to negotiate" largely in relation to mining alone is seen by some in the mining community as evidence that miners are asked by the community to bear the brunt in some ways of society's belated recognition of native title under Australian law, just as some Indigenous people see the winding back of gains under the original Native Title Act on top of other governmental actions towards Indigenous people throughout Australia's history as evidence of further political and legal incapacity to set correct priorities in the native title debate as part of the wider agenda of reconciliation.

The fifth prediction is that we are likely to see an enhancement in moves on a number of fronts towards inclusive management of land and resources, in terms of greater consultation between all levels of government, commercial interests, and Indigenous people concerning the use and protection of land, resources, and the environment.


The sixth prediction is that Indigenous dissatisfaction with governmental actions like passage of the Native Title Amendment Act is likely to result in increasing resort by Indigenous people to appropriate international avenues of redress, particularly in light of the international community's current scrutiny of Australia's treatment of Indigenous people and also in light of the increasing scrutiny of Australian affairs leading up to the Sydney 2000 Olympics. Australia's ratification of a number of international agreements now opens up the possibility of allegations of human rights abuses being ventilated in formal international proceedings.

The seventh prediction is that nothing which John Howard, Kim Beazley, Peter Beattie, or any other politician can do now will remove native title as an issue from the political and legal agenda, so that all "stakeholders" will continue to need legal advice about Commonwealth and State native title legislation which is complex and often unwieldy.

The eighth prediction is that native title hopefully will be raised more and more in the public consciousness and also in civics education in schools and universities in courses as varied as journalism, business, law, legal studies, politics, and social and cultural studies. Hopefully, this will also result in a gradual abandonment of the public and media-driven desire to view native title in simplistic terms of "goodies", "baddies", "who wins", "who loses", etc. All sides have acted in ways which can be criticized on some levels - governments, bureaucrats, and courts who have presided over dispossession of Indigenous people by lawful means without compensation; commercial interests who have gained from those actions and who also use their superior resources and power to their advantage in political lobbying and land negotiations; Indigenous claimants who have participated in unjustified ambit claims and multiple claims, extortionate demands in negotiations, and understandable but unjustified public outbursts after unsuccessful court action to prove native title or prevent development.

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This is a short extract from a presentation by Associate Professor Bryan Horrigan, at a free public seminar on native title conducted by the Faculty of Law in the Queensland University of Technology (QUT) on Wednesday 24 February 1999 at the Queensland Parliamentary Annexe, as part of a QUT Community Service initiative. The last part of his presentation focused upon predictions for the future.

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About the Author

Professor Bryan Horrigan studied at Oxford University as a Rhodes Scholar and now works at the University of Canberra, where he is Director of the National Centre for Corporate Law and Policy Research and Deputy Director of the National Institute for Governance. He is the author of Adventures in Law and Justice - Exploring Big Legal Issues in Everyday Life.

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