Mr SETTER - 1995-03-01
The Chief Minister is aware of recent comments by Justice French, the President of the Native Title Tribunal, who referred to 'significant moral shortcomings in the principles by which native title is being recognised'. Does the Chief Minister agree that there are shortcomings in the Native Title Act and, if so, what impact do they have on the Territory?
ANSWER
Mr Speaker, the honourable member is referring to a judgment by the national Native Title Tribunal in which it rejected the claim by the Waanyi people to land in a camping and water reserve in the Lawn Hill area of north-west Queensland. Incidentally, that claim was over land to be used as part of CRA's Century zinc mine. The tribunal found that the grant of pastoral leases in 1883 and 1905 had extinguished whatever native title had existed in that land. While a later camping and water reserve excision was granted, the tribunal found that native title had been extinguished already by the earlier pastoral leases.
There are 2 matters of concern arising from this ruling, and these will impact on the Territory as well as the rest of Australia. The first is the comments by the president of the tribunal to which the honourable member referred. For almost 3 years, we have been concerned about a High Court ruling in the Mabo case and the subsequent legislation of the federal government. Only now are the decisions in the act beginning to work their way through the tortuous process established by the law. We are being told already that the High Court decision and the Native Title Act are not good enough. It is alleged that, if claims cannot be granted, there must be something wrong with both the court and the parliament. It was the clear intention of the federal government and the parliament - and I quote from the Prime Minister's second-reading speech - that 'under the common law, past valid freehold and leasehold grants extinguish native title'. The Prime Minister went on to state that there 'is
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therefore no obstacle or hindrance to the renewal of pastoral leases in the future'. However, the president of the tribunal commented in the Queensland case:
The conclusion of the presidential member cannot depend upon opinions about the common law expressed in the course of parliamentary debate or in the preamble to the legislation.
While the president ruled that pastoral leases of 1883 and 1905 had extinguished native title in the Waanyi case, the tribunal characterised moves to assert the fact that they had extinguished native title as perverse. There was also implied criticism of those who seek to assert the facts of the situation in the following comment by the tribunal: 'States, territories and significant mining interests are vigorous in their pursuit of extinguishing events against native title claims'. Nevertheless, it is the law of the parliament as the federal government intended it and it is the judgment of the High Court that past titles, which were validly issued, extinguish native title. Either native title has been extinguished by past acts or it has not. If that is challenged, as now seems likely, all the turmoil, stress and chaos surrounding title security in Australia that was supposed to have been put to rest by the historic agreement on the Native Title Act has returned to haunt us.
The second matter that arises from this is the reaction to the tribunal's judgments and comments. There has been talk already of challenges to higher courts and even to the United Nations. In some of its public comments, the Native Title Tribunal seemed to be encouraging such a challenge to its own ruling. Various organisations have also called for amendment to the Native Title Act simply on the basis that the Waanyi claim has been rejected. They argue that this must mean that the act is defective. The federal Attorney-General has indicated that the act will be reviewed. The irony in that is that, when another federal politician, the Leader of the Opposition at the time, suggested 6 months ago that the act was flawed and may need amendment or even an appeal to fix it, he was attacked unmercifully by the federal government, by Aboriginal organisations and indeed by the media. The cry now is: 'We must have got it wrong. Let us return Australia to uncertainty. Let the investors, the bankers, the miners - the creators of wealth in this country - put everything on hold once again'. They want to put more uncertainty into a law that already has its share of deficiencies.
We have previously identified a major flaw in the act in that no one knows whether a pastoral lease of any kind extinguishes native title totally or whether some native title rights continue consistent with a reservation on the pastoral lease. This is an important matter for the Territory as many of the pastoral leases here have such reservations. However, in order to resolve this, we will have to go to the High Court at Territory taxpayers' expense. The federal government has put the matter in the 'too hard' basket.
I have written to the Prime Minister outlining the Territory's concern over this matter, and I table a copy of that letter of 21 February to the Prime Minister. In the letter, I put to the Prime Minister a series of questions that require urgent resolution:
Does the Commonwealth maintain its assertion that the grant of pastoral leases, including those with reservations, extinguishes native title?
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Does the Commonwealth accept that it is appropriate that the Northern Territory continue to deal with land the subject of pastoral leases on the assumption that the Native Title Act does not apply?
What is the Commonwealth government's intention in respect of calls for amendments to the Native Title Act to allow claims where native title has previously been extinguished, for example, by the
grant of a pastoral lease?
What action will the Prime Minister take if, contrary to the Commonwealth's assertions, the court rules ...
And that could be up to 2 years from now.
... that the grant of a pastoral lease with reservations does not extinguish native title?
Only a month ago, I outlined at a press conference what I considered to be the important issues facing the Territory this year, and I said that this would be a crunch year for native title. The Native Title Tribunal has now reinforced my view that the federal native title legislation has not established a regime of certainty for all parties, Aboriginal and non-Aboriginal. It has made the complex issues far more complex.
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ANSWER
Mr Speaker, the honourable member is referring to a judgment by the national Native Title Tribunal in which it rejected the claim by the Waanyi people to land in a camping and water reserve in the Lawn Hill area of north-west Queensland. Incidentally, that claim was over land to be used as part of CRA's Century zinc mine. The tribunal found that the grant of pastoral leases in 1883 and 1905 had extinguished whatever native title had existed in that land. While a later camping and water reserve excision was granted, the tribunal found that native title had been extinguished already by the earlier pastoral leases.
There are 2 matters of concern arising from this ruling, and these will impact on the Territory as well as the rest of Australia. The first is the comments by the president of the tribunal to which the honourable member referred. For almost 3 years, we have been concerned about a High Court ruling in the Mabo case and the subsequent legislation of the federal government. Only now are the decisions in the act beginning to work their way through the tortuous process established by the law. We are being told already that the High Court decision and the Native Title Act are not good enough. It is alleged that, if claims cannot be granted, there must be something wrong with both the court and the parliament. It was the clear intention of the federal government and the parliament - and I quote from the Prime Minister's second-reading speech - that 'under the common law, past valid freehold and leasehold grants extinguish native title'. The Prime Minister went on to state that there 'is
Page 462
therefore no obstacle or hindrance to the renewal of pastoral leases in the future'. However, the president of the tribunal commented in the Queensland case:
The conclusion of the presidential member cannot depend upon opinions about the common law expressed in the course of parliamentary debate or in the preamble to the legislation.
While the president ruled that pastoral leases of 1883 and 1905 had extinguished native title in the Waanyi case, the tribunal characterised moves to assert the fact that they had extinguished native title as perverse. There was also implied criticism of those who seek to assert the facts of the situation in the following comment by the tribunal: 'States, territories and significant mining interests are vigorous in their pursuit of extinguishing events against native title claims'. Nevertheless, it is the law of the parliament as the federal government intended it and it is the judgment of the High Court that past titles, which were validly issued, extinguish native title. Either native title has been extinguished by past acts or it has not. If that is challenged, as now seems likely, all the turmoil, stress and chaos surrounding title security in Australia that was supposed to have been put to rest by the historic agreement on the Native Title Act has returned to haunt us.
The second matter that arises from this is the reaction to the tribunal's judgments and comments. There has been talk already of challenges to higher courts and even to the United Nations. In some of its public comments, the Native Title Tribunal seemed to be encouraging such a challenge to its own ruling. Various organisations have also called for amendment to the Native Title Act simply on the basis that the Waanyi claim has been rejected. They argue that this must mean that the act is defective. The federal Attorney-General has indicated that the act will be reviewed. The irony in that is that, when another federal politician, the Leader of the Opposition at the time, suggested 6 months ago that the act was flawed and may need amendment or even an appeal to fix it, he was attacked unmercifully by the federal government, by Aboriginal organisations and indeed by the media. The cry now is: 'We must have got it wrong. Let us return Australia to uncertainty. Let the investors, the bankers, the miners - the creators of wealth in this country - put everything on hold once again'. They want to put more uncertainty into a law that already has its share of deficiencies.
We have previously identified a major flaw in the act in that no one knows whether a pastoral lease of any kind extinguishes native title totally or whether some native title rights continue consistent with a reservation on the pastoral lease. This is an important matter for the Territory as many of the pastoral leases here have such reservations. However, in order to resolve this, we will have to go to the High Court at Territory taxpayers' expense. The federal government has put the matter in the 'too hard' basket.
I have written to the Prime Minister outlining the Territory's concern over this matter, and I table a copy of that letter of 21 February to the Prime Minister. In the letter, I put to the Prime Minister a series of questions that require urgent resolution:
Does the Commonwealth maintain its assertion that the grant of pastoral leases, including those with reservations, extinguishes native title?
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Does the Commonwealth accept that it is appropriate that the Northern Territory continue to deal with land the subject of pastoral leases on the assumption that the Native Title Act does not apply?
What is the Commonwealth government's intention in respect of calls for amendments to the Native Title Act to allow claims where native title has previously been extinguished, for example, by the
grant of a pastoral lease?
What action will the Prime Minister take if, contrary to the Commonwealth's assertions, the court rules ...
And that could be up to 2 years from now.
... that the grant of a pastoral lease with reservations does not extinguish native title?
Only a month ago, I outlined at a press conference what I considered to be the important issues facing the Territory this year, and I said that this would be a crunch year for native title. The Native Title Tribunal has now reinforced my view that the federal native title legislation has not established a regime of certainty for all parties, Aboriginal and non-Aboriginal. It has made the complex issues far more complex.
Page 464
Last updated: 09 Aug 2016