Native Title Gets A Shake Up


Late last month, Greens Senator Rachel Siewert tabled a Private Senators Bill to amend the federal Native Title Act 1993 (NTA). Siewert characterised her party’s Bill as a means of addressing "the barriers claimants face in making the case to demonstrate their pre-existing native title rights and interests". Debate on the Bill was adjourned — native title no longer commands the impassioned attention it did during the 1990s.

The Greens Bill provides, among other things, that compulsory acquisition of land does not extinguish native title rights. It requires decision makers to act with regard to the United Nations Declaration of the Rights of Indigenous Peoples and provides that native title rights can be of a commercial nature.

State governments and the pastoral and mining industries have become accustomed to the existing system, and Indigenous property rights have never been a vote-winner in Australia — any amendments perceived to confer "extra" benefits on claimants would likely meet with opposition from powerful interest groups. The responses of the major political players will be influenced by an assortment of disparate factors.

The NTA is a child of Labor past; a legacy of the Keating Government. For all its flaws, it represents an instance of conviction politics: a response to the 1992 Mabo decision which was pursued with scant regard for focus groups. In a recent piece on the Drum lamenting what he saw as Julia Gillard’s lack of "any deeply held or coherent philosophy", writer Malcolm Farnsworth asked: "Would a Gillard government have screwed its courage to the sticking-place and brought in the Native Title Act, as Keating’s did?"

The ALP’s response to Siewert’s Bill remains to be seen. Last year, the Government released a discussion paper (pdf) which also canvassed possible amendments to the NTA. Some will likely meet with approval from native title claimants; the Government’s decision to amend the Act to provide clarification on what "negotiation in good faith" entails and to "encourage parties to engage in meaningful discussions" about development is certainly welcome. Similarly, the Greens’ Bill proposes to strengthen the requirement to negotiate in good faith by requiring that parties "use all reasonable efforts" to come to an agreement.

Other suggestions in the discussion paper, though, may be more problematic. It canvassed options for improving governance in "native title agreements", including "encouraging" entities that hold benefits to adopt particular regulatory measures and the establishment of a body to review draft agreements and assess their "sustainability". Although native title claim groups may appreciate assistance enhancing agreements and managing their benefits, the hints at coercion are disturbing; the paper muses "one way to encourage adoption of the governance measures and leading practice principles would be to mandate them".

One might well ask, as did Professor Jon Altman of the Centre for Aboriginal Economic Policy Research, whether the Australian Government has "the moral authority to play a role in … regulating the use of native title payments?" Altman noted that payments under "agreements between native title groups and commercial interests" were "surely … of a private nature and so no more subject to government regulation than a similar payment to any other land owner".

Indigenous Affairs Minister Jenny Macklin had foreshadowed some measure of governmental involvement in "native title agreements" for several years, as previously noted in New Matilda. These proposals demonstrate the ALP’s struggles to accommodate its support for native title within its current approach to Indigenous affairs. As a product of what is now termed the "rights agenda", native title sits uncomfortably alongside the "close the gap" discourse embraced by both Labor and the Coalition.

The Liberal and National parties, at both state and federal levels, have a long history of antipathy to native title, although something of a truce now prevails. Recent years have seen an intriguing shift — the Coalition has sought to amend the Queensland Wild Rivers Act 2005 to require the consent of "the traditional owners of native title land" before any "wild rivers" declaration is made. Such a right of veto would extend far beyond the limited procedural rights under the NTA. If Abbott wishes to strengthen property rights to enhance Indigenous economic empowerment, it seems inconsistent to provide this right only to Aboriginal groups within one area, and in respect of only one type of decision. The Greens’ Bill calls the Coalition’s bluff — as Siewert noted, "it would seem in principle that there is cross-party support for these measures". We will now see whether Abbott’s support for "the Aboriginal people of Australia finally [getting]a fair go where their land is concerned" extends beyond the Queensland border.

The reaction of the Independents is uncertain. In 2009 the then little-known MP Rob Oakeshott unsuccessfully proposed amendments to the NTA that would have shifted the burden of proof away from native title claimants and on to the State government. Oakeshott argued: "It should be up to the State, with its 220 year history of advantage, power and resources, to disprove a connection to the land rather than the current model that asks Indigenous groups, with a 220 year history of disadvantage, removal and dislocation [to prove connection]". Oakeshott’s proposal is echoed by a similar provision in the Greens’ Bill. However, the results of the NSW election — which saw Oakeshott’s friend and successor Peter Besseling lose his Port Macquarie seat with a swing of around 11 per cent to the Nationals — indicates that the Independent MP may be vulnerable to backlash. He and Tony Windsor have been subject to renewed attacks for their support of the Gillard Government, with Christopher Pyne rather hyperbolically describing it as an indication that the world was "not turning on its axis as the public expected it would".

Bob Katter of course did do his bit to ensure that the world turned satisfactorily after the 2010 election, and in deciding to support the Coalition, he declared Indigenous affairs "a very burning question for me" and called for repeal of the Wild Rivers Act. Katter also recently contributed a somewhat incoherent but passionate article to the National Indigenous Times, in which he championed private home ownership for Aboriginal people, condemned the Northern Territory Intervention, and wrote that "blackfellas have been pushed far enough and they’re going to make a stand". His stance on amendments to the NTA is difficult to predict.

In 2011, we are far from the bitter disputes of the 1990s, but native title remains a contested and complex field. Watch this space.


Like this article? Register as a New Matilda user here. It’s free! We’ll send you a bi-weekly email keeping you up to date with new stories on the site.

Want more independent media? New Matilda stays online thanks to reader donations. To become a financial supporter, click here.

New Matilda is independent journalism at its finest. The site has been publishing intelligent coverage of Australian and international politics, media and culture since 2004.