While the Wik decision has been a positive catalyst for creating a workable system for Indigenous Land Use Agreements, legal questions over Native Title as a property right and compensation still remain.
During Reconciliation Week, National Native Title Tribunal Member Mr James McNamara spoke at the Griffith Law School and GUMURRII Mabo Day Lecture about the turbulent environment in which the Wik decision emerged.
“There was an outcry of judicial activism, the Prime Minister John Howard said that the pendulum had swung too far in favour of Aborigines. On the 7:30 Report he claimed that Aborigines would have the right of veto over 78% of Australia,” said Mr McNamara.
State and Territory governments had to act swiftly to consider the impact that the Wik decision would have over affected pastoral leases said Mr McNamara.
“In Queensland, the area of what was though to be claimable land pre-Wik was thought to be 6% of the state, post-Wik, at least 50% of the state. This naturally changed the dynamic considerably.”
With pressure from pastoralists and the mining industry mounting, the Howard Government sought to bring more certainty about their rights with the ‘10 Point Plan’, a raft of amendments to the existing Native Title Act.
“But there were no concessions in favour of Native Title [and Native Title holders] in any of that, it was all certainty on the part of everyone else dealing with Native Title land,” says Mr McNamara.
The sun never sets on Parliament House
Mr McNamara, who participated and provided advice on behalf of the States, says the fifty-five hour debate in the Senate on the ‘10 Point Plan’ was confusing and at times shambolic.
“There is so much confusion going on, you get told so many different things. These were the days before mobile technology where you could get messages through quickly and directly.”
“You would see handwritten amendments passed around and you had to think about the implication for States, for interest groups, for the traditional owners and you had to try and present a view on workability,” recalls Mr McNamara.
According to McNamara the Ten Point plan ended up being about ‘900 individual amendments that had been debated and about 107 amendments to the bill as tabled’.
“The Commonwealth didn’t want to make the same mistake that was made the first time around and made it clear what did and didn’t extinguish Native Title, these were called the Confirmation of Extinguishment provisions.”
Some of the amendments were completely new concepts, including the revival of Native Title in limited circumstances. Other amendments included the Aboriginal Land Use Agreements which are commonplace today says Mr McNamara.
The Commonwealth placed responsibility on the States to pass complimentary legislation, giving effect to these changes.
According to Mr McNamara the newly elected Beattie Government in Queensland made a commitment to pursuing agreement-based solutions to Native Title issues as a matter of policy.
The political situation had gone from being a benign issue to the Queensland Government needing to consider every thing it did and whether it had an impact on Native Title.
“Every cabinet submission about legislative reform or any major announcements had to go past me to see what were the implications, how are they being managed, everything had to go through that filter,” says Mr McNamara.
The Queensland Government at the time also sponsored an Indigenous Working Group, which worked with stakeholders to develop solutions such as the Indigenous Land Use Agreements for small mining.
According to Mr McNamara, these Indigenous Land Use Agreements have had the most impact.
“Indigenous Land Use Agreements are the greatest legacy of Wik. Cumulatively across Australia and particularly in Qld which has taken it up in a more significant way than anywhere else.”
What lies ahead for Native Title in Australia
Mr McNamara says that Indigenous Property Rights and compensation still loom on the horizon.
The Human Rights Commission has taken the long term view that Native Title is a property right, which has significant economic implications.
Native Title holders that manage large areas of land might be eligible for significant Carbon Credit payments because of traditional fire management practices that reduce the amount of carbon in the atmosphere says Mr McNamara.
“The Human Rights Commission are on to it, the roundtable that they held last year has become an Indigenous Property Rights project that might drive this a bit further.”
The High Court has yet to make a ruling about compensation, but when it does there is the potential for a flurry of ‘legal excitement’ says Mr McNamara.
“The High Court may well tell us all how to measure compensation and when it is payable, so a figure can be put on it. Then who pays for it will be the next question, it might be that the whole question about property rights might feature in a more meaningful way.”