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Legislative Council |
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| Sandra Kanck Deputy Leader Australian Democrats Member of the Legislative Council |
STATUTES AMENDMENT (NATIVE TITLE No.2) BILL |
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1999 Budget Session Index |
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Legislative Council |
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| Sandra Kanck Deputy Leader Australian Democrats Member of the Legislative Council |
STATUTES AMENDMENT (NATIVE TITLE No.2) BILL |
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1999 Budget Session Index |
The Hon. SANDRA KANCK: It is appropriate that I begin my contribution to this debate with an acknowledgment that we in this Parliament are on Kaurna land, land from which the Kaurna people were dispossessed by representatives of Britain and by British law. British law held New Holland to be terra nullius, a land without people. It sanctioned the complete dispossession of the traditional owners of the land. It was grounded in the notions of racial superiority prevalent in the eighteenth century. That law was wrong—wrong on the facts and wrong in principle.
Australia was not a land without people, nor were Aborigines a people without law. The recognition of native title by the High Court in Mabo No.2 swept aside the legal fiction that pre colonial Australia was terra nullius. It was a decision with profound legal and moral implications. Yet immediately the clamour began: restrict it; narrow it; ignore it; extinguish it. The Patterson's curse of land title had apparently struck Australia. It was time to panic. The wisdom of the racists was that it had to be eradicated before rural Australia was laid to waste. Vested interests continued to whip regional Australia into a cauldron of hysteria with a subsequent High Court Wik judgment. Politicians played to the gallery; bucket loads of extinguishment were promised; fear was encouraged; facts were ignored. The result is now before us. I am profoundly disappointed that with this Bill the South Australian Government has bowed to the hysteria and the vested interests. This native title Bill is racist—make no mistake. It is racist because it treats the form of land title traditionally held by Aboriginal people in a way that is demonstrably inferior to all other forms of land title in this country. In any amendments to the existing Acts, the Democrats believe that there is a need for fairness and justice. It is absent from this legislation, just as it was absent from the Federal legislation on which it is based. Twelve months ago the Federal Government was threatening to take the nation to a double dissolution election if it did not get its own way over the contents of its amendments to the Native Title Act—Howard's so-called 10 point plan. The Prime Minister was willing to risk a divisive race election to provide the States with the power to diminish native title. In the end he succeeded in getting the amendments he wanted without having to go down that path. The amendments to the Federal Act enable the States to get around section 109 of the Federal Constitution. Should a State Government wish to further reduce native title it can, provided that it has parliamentary support. The legislation we have before us shows us that this current Government in South Australia does indeed wish to water down native title. Well, that is certainly not the wish of the Democrats—and I hope it is not the wish of the Labor Party or the Independents in this Parliament. The fact is that the passage of Howard's 10 point plan last year has not required State Governments to do a thing. We are not like Western Australia which had no regime in place: in late 1994 and early 1995 we dealt with the State response to the Mabo judgment. The need for certainty is often cited as a primary reason for whittling away native title, but what certainty and for whom? Mining companies and some pastoralists want the certainty that native title is extinguished. They want the certainty that they will not have to share title or negotiate with Aborigines. They want the certainty of a pre Mabo world, a world based on lies. Jesuit Priest, Father Frank Brennan, recognised this, and I quote, saying: Some pastoralists do not want only certainty. They want more. They want to be able to expand their pastoral lease title which did not necessarily give the right of exclusive possession into something akin to freehold. I wonder just what part this desire has played in the formulation of the South Australian Government's response to the revised Federal Act. If certainty is the catchcry, we should be clear about the effect of the Wik determination. Wik held that native title exists on pastoral leases only so far as it can co-exist with the terms of a lease. Should the two be incompatible, native title is the one that falls over. That is not a bad deal for the pastoralists, but some of them want more. If certainty is the catchcry, why is certainty to be provided for the select few pastoralists in this country, such as the Sultanate of Brunei, who has no love or loyalty for this country, or the absentee landlords of the Kidman empire who have a loyalty only to their shareholders?536 Why should they be given greater priority and respect than the original inhabitants of this country, and why is this State Government prepared to conspire to advance this situation for a select few? The Democrats are particularly concerned about what the State Government proposes to do with intermediate period Acts and, although the proposal is entirely consistent with the Federal Act, it does not make it any less objectionable. When the original native title laws were passed by Federal Parliament, two types of actions were described in regard to Aboriginal land—past and future Acts. The past Acts were those which had occurred up to that time and which had effectively become invalid because of the declared existence of native title.
At the time those actions occurred, there was no knowledge of a legal form of native title, so Parliament (via the Native Title Act) retrospectively validated them. It was naturally assumed by all of us that any future Acts would not be allowed to contravene the Native Title Act but, between the passage of that legislation in 1993 and the introduction of the new amendments in 1997, the Queensland and Western Australian Governments transgressed by granting land in contravention of the Federal Native Title Act. In particular, the Goss Labor Government in Queensland illegally granted up to 800 tenements, and when the amendments came before Federal Parliament in 1997 the Labor Party wanted to protect their mate `Gossie', so the Federal Opposition rolled over. Despite the fact that the Goss Labor Government had been acting illegally, the Liberal-Labor Coalition in Federal Parliament acted together to let all these so-called intermediate period Acts through. Perhaps the saying about there being honour amongst thieves applies here. Effectively, the Labor Opposition in Federal Parliament licensed the States to act illegally and immorally. I have been told that the Labor Party in this Parliament is set to agree with the Liberals on this same aspect with the State legislation. I hope that this is not true, and I urge them not retrospectively to approve illegal and immoral actions.I understand that some pastoralists are on extremely marginal land and have long coveted the notion of expanding the range of activities permitted on their leases, but I see no need for this to be codified in legislation. That diversification has been able to occur up until now. There are pastoralists, for instance, who act as tour guides on their properties. I recall seven or eight years ago staying with my husband in shearers' quarters on a pastoral property that we used as a base while exploring the Flinders Ranges. I had no problems with that, and if they were able to make a few more dollars by such an activity I certainly will not quarrel with that. But to formalise this diversification of activities on pastoral leases has the potential correspondingly to diminish native title, and it should be resisted.
The one positive clause of this legislation is preservation of the right to negotiate. This was put in place in the State legislation in 1995, coming into effect in June 1996. The Federal Act has a diminishing hierarchy of the right to negotiate, the right to object and the right to be consulted, and it is to the credit of the State Government that the right to negotiate is upheld in this Bill. But having congratulated the Government on the only positive I can find in this Bill, I was considerably taken aback to find in documentation forwarded to me last week by the Attorney-General's office and prepared by the Native Title Unit of Crown Law that this one positive may now be watered down.
Furthermore, the Democrats believe that the right to negotiate should also be imposed on the petroleum industries. Under this Bill, the world's oldest recognised form of land title will, in certain circumstances, be extinguished by short-term leases that have long ceased to exist. Hence, a lease to hunt and skin rabbits granted last century and soon abandoned extinguishes customary law thousands of years in the making. Indeed, as the Federal Act stands, the grant of land such as that granted to Ophix in the Flinders Ranges, land which was never used for its intended purpose, would be deemed to have extinguished native title.
When the Miriuwung and Gajerrong decision was handed down in November last year, Justice Lee ruled that, in particular cases, such as the type listed in schedule 1 part 5 of the Federal Act, native title has not been extinguished. The example given was a proposed tourist resort at Lake Argyle in Western Australia, in which the State had the intention of extinguishing native title. But the intention to extinguish was conditional on the resort being built, and that did not occur. Is our State Government about to ignore the ruling of Justice Lee? I wonder what legal costs the taxpayers of South Australia will have to fork out as challenges occur in this regard.
537 This Bill also envisages that an agreement can be made between native titleholders and a mining company to allow for both exploration and production in the one set of negotiations. This is known as a conjunctive agreement. The downside of conjunctive agreements is that it will allow the ERD Court to anticipate conditions without even knowing exactly where the mine will be located. It is also worth while noting that the great majority of exploration leases do not result in mining production. I indicate that the Democrats are not particularly happy with the generality of the provisions in this Bill in regard to conjunctive agreements. I am aware that the petroleum industry is interested in conjunctive agreements as their exploration hole becomes the appraisal hole becomes the development hole, and so there might be some sense in a conjunctive agreement for that part of the mining industry. If this part of the Bill is there to satisfy the petroleum industry, why is it not possible to identify conditions which are appropriate for the petroleum industry?
In the documents from the Native Title Unit to which I referred earlier, it appears that the Government is bending still further to pressure from the mining industry. Most exploration licences are issued for terms of six or 12 months and when they expire the company must go through the whole process again if it wants to do more exploring in that area. But it appears that the Government is now considering allowing another form of conjunctive agreement whereby a company could get extensions of the exploration licences as part of these conjunctive agreements up to a total of five years. It seems that the more time the Government spends consulting the worse this legislation is likely to get.The issue of the amount of compensation payable on acquisition will need to be considered carefully because of the limits set using freehold valuation. There are bucket loads of injurious affection in this. This is in the Federal Act, but whereas that Act at least refers to this occurring on `just terms' the State Bill does not have this reference. Again, if the Government does not get it right, the South Australian taxpayer could be up for lots of money. Where compensation is payable, the Federal Government will meet 75 per cent of the costs and the State Government 25 per cent. I wonder whether the Attorney-General has an estimate available of how much he thinks the South Australian taxpayer might be asked to bear in the future. Somehow it seems to me that it might be a lot cheaper if native title were not extinguished. The amount of money we could be expected to fork out is likely to be an enormous cross subsidy to the pastoralists and miners in this State.
I know that there are members in this Chamber who describe themselves as Christians and, further to that, some who are practising Roman Catholics. It is important, therefore, that I draw the attention of members to the comments of Leonard Faulkner, the Archbishop of Adelaide, in his Christmas 1993 pastoral letter. Although he was speaking at that time about the Mabo decision, he might have been speaking about the legislation before us when he said:
. . . it is clear that justice requires that the process of reconciliation involve negotiation towards a proper compensation. At the very least I would hope that those practising Christians in this Chamber would see their way clear to agreeing that compensation should be on fair and just terms. South Australia has native title legislation in place which was passed between late 1994 and early 1995, and the Attorney-General has boasted on a number of occasions how good this legislation is. That, combined with the observation I made earlier that last year's Federal amendments do not require the States to do anything, means that there is no need for any further amending legislation in South Australia. This Bill is even worse than last year's Federal legislation. It creates division when we should be moving towards reconciliation. It is a backward step for race relations in this State, and for those reasons the Democrats will oppose the second reading.The Hon. M.J. ELLIOTT: I will make a brief contribution to this debate; I think Sandra Kanck has covered the most important points. I refer to a State which, relative to other States in Australia, used to be the fairest, most humane and most reasonable on issues in relation to Aboriginal people. I must say that I am quite appalled that any pretence at fairness is now disappearing. I do not know how many members in this place have ever read a copy of the Letters Patent in relation to the first establishment of this colony, but I will read it into the record as its contents should not be forgotten. I will read from a copy of the Letters Patent passed under the Great Seal of the United Kingdom, erecting and establishing the Province of South Australia and fixing the boundaries thereof, dated 19 February 1836, as follows:
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WILLIAM THE FOURTH by the Grace of God of the United Kingdom of Great Britain and Ireland King Defender of the Faith TO ALL TO WHOM these presents shall come greeting WHEREAS by an Act of Parliament passed in the Fifth Year of our Reign entitled `An Act to empower His Majesty to erect South Australia into a British Province or Provinces and to provide for the Colonisation and Government thereof' after reciting that that part of the Australia which lies between the Meridians of the one hundred and thirty-second and one hundred and forty-first degrees of East Longitude and between the Southern Ocean and twenty-six degrees of South Latitude together with the islands adjacent thereto consists of waste and unoccupied lands which are supposed to be fit for the purposes of colonisation and that divers of Our Subjects possessing amongst them considerable property are desirous to embark for the said part of Australia and that it is highly expedient that Our said Subjects should be enabled to carry their said laudable purpose into effect it is enacted that it shall and may be lawful for Us with the advice of our Privy Council to erect within that part of Australia which lies between the Meridians of the one hundred and thirty-second and one hundred and forty-first degrees of East Longitude and between the Southern Ocean and the twenty-six degrees of South Latitude together with all and every the Islands adjacent thereto and the Bays and Gulfs thereof with the advice of Our Privy Council to establish one or more Provinces and to fix the respective boundaries of such Provinces NOW KNOW YE that with the advice of Our Privy Council and in pursuance and exercise of the powers in us in that behalf vested by the said recited Act of Parliament We do hereby erect and establish One Province to be called the Province of SOUTH AUSTRALIA—And we do hereby fix the Boundaries of the said Province in manner following (that is to say) On the North, twenty-sixth degree of South Latitude—On the South the Southern Ocean—On the West the one hundred and thirty-second degree of East Longitude—And on the East the one hundred and forty-first degree of East Longitude including therein all and every the bays and Gulfs therefore together with the Island called Kangaroo Island and all and every the Islands adjacent to said last-mentioned Island or to that part of the mainland of the said Province PROVIDED ALWAYS that nothing in these Our Letters Patent contain shall effect or be construed to effect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own persons or in the persons of their descendants of any lands therein now actually occupied or enjoyed by such Natives IN WITNESS whereof We have caused these our letters to be made Patent WITNESS Ourself at Westminster the Nineteenth day of February in the Sixth Year of our Reign. By writ of the Privy Seal. Edmunds. Let me stress the following: . . . it was not to effect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own persons or in the persons of their descendants of any lands therein now actually occupied or enjoyed by such natives. . . It is quite plain that in that statement there was a perception that there was a lot of space, but there was also a perception that, indeed, native people were living in South Australia and they were occupying and using part of the land. In their ignorance, I do not think they realised that all of it was occupied and being used and enjoyed. They did not have a system of land ownership as Europeans do; therefore, they did not fence it off. However, all the land was in the use and enjoyment of the native people of South Australia. The Letters Patent, upon which this very colony was established and which is the first legal Act in establishment of this colony, made quite plain that the Aboriginal people had rights—very clear rights. Some residual rights remain. The Government is still trying to continue that process of taking away existing rights. We are continuing that. I cannot understand how any member of the Government in good conscience could ever have been behind legislation, knowing that, indeed, they are further eroding existing rights. It is an absolute outrage.539 I do not know from where this legislation comes, in that I have had discussions with leading figures in the South Australian Farmers Federation, private conversations, in which they have said to me that they are quite relaxed about their legal position, that there are no genuine legal problems facing landowners. They did say that there are people who are concerned about implications, largely because of the political gains and hysteria which were not being whipped up in South Australia. I do not think members of any political Party in South Australia have been playing political games on this issue. Games were being played in the eastern States—no question about it. The farmers in South Australia were certainly seeing it in the media and were becoming concerned. Stuff that was plain outright lies was being repeated for political reasons in the eastern States and was coming here via the media.
The fact is that we do not have legal problems in South Australia. In the pastoral lands, for example, within the Pastoral Act we had no problems in terms of recognising the rights of pastoralists and the traditional rights of Aboriginal people. In my discussions with pastoralists they have never told me of having any difficulties in relation to Aboriginal access to land. The Hon. Sandra Kanck interjecting: The Hon. M.J. ELLIOTT: That is right—they have problems with other people going on to their land but have generally not had problems with Aboriginal people going on to their land. No problem in South Australia is being fixed by this legislation—no problem whatsoever. But here we are further moving away from what was a very clear statement at the beginning of the colony of South Australia, and that was a recognition that Aboriginal people were here and that they had a use and enjoyment and a right that they would keep it and a right that their descendants would keep those rights. I am surprised that someone like the Attorney-General, who understands the law, would ever be a party to this sort of performance. I am shocked and can only believe that he has been overruled in a Cabinet that is deeply conservative. The Hon. K.T. Griffin: You do not understand it—that is the problem. The Hon. M.J. ELLIOTT: I do not have any problems understanding what is happening here whatsoever. Do not tell me that I do not understand—I know precisely what is happening here. I indicated that I did not wish to speak at length, but I remind members of the letters patent. The mythology of terra nullius was not a mythology at the beginning of the occupation of South Australia, because the letters patent before Europeans arrived clearly recognised Aboriginal people and their rights. Those rights have been eroded ever since—the land has been stolen. It has been stolen because it went against the letters patent and, as it was stolen, legislation has over time justified that stealing. You cannot undo history. I am not saying that we wind black the clock and that Europeans jump back into ships and go back to Europe—that is a nonsense. You cannot wind back history, but there are legitimate arguments in terms of just compensation. We are not talking about what happened 160 years ago but about what happened in the lifetimes of people in current existence, people currently alive. But, to take it even further and to further erode existing rights—something the Attorney-General on many occasions rants against in this place—damn it all, that is exactly what we are doing at present.More news on Aboriginal Affairs
