Recommendations
AUSTRALIAN DEMOCRATS ADDENDUM
Introduction.
Australian Democrat Senator, John Woodley expresses particular concern
about the extreme shortage of time available to him for consideration
of the Bill and the majority and minority reports. Following the defection
of Mrs Kernot to the Australian Labor Party, Senator Woodley became the
Australian Democrats' spokesperson on Aboriginal and Torres Strait Islander
Affairs on Thursday 16 October and was appointed to the Committee on Monday
20 October. Having had 72 hours in which to assess the Bill and provide
his response to it, his support for the Minority Report must be qualified.
Some of these qualifications are expressed in this addendum. Given the
great importance the Australian Democrats give this legislation, on behalf
of all Australians, Senator Woodley is unwilling - at such short notice
- to express a conclusive view as to whether the Minority Report Recommendations
are exhaustive therefore he reserves his right to make further amendments
in the Senate.
The Australian Democrats are of the view that the Native Title Amendment
Bill 1997 represents either the Government's failure to comprehend
the High Court's Wik decision or its deliberate misrepresentation
of that decision to the Australian community. The Minority Report's dissection
of the Bill reveals it to be unnecessary, provocative and divisive legislation
which does nothing to reduce the 'uncertainty' of the current situation
and in our view, will increase the chances of further protracted litigation.
It reveals that much of the Bill is about the permanent and irrevocable
extinguishment of native title rights and the conferring of significant
benefits on pastoral leaseholders and other non-Indigenous users of non-freehold
land.
Rather than establishing a fair and clear regime for accommodating the
rights, responsibilities and requirements of land users, the Bill reflects
- and builds upon - many of the public misconceptions, misrepresentations
and fears about the impact of the Mabo and Wik decisions.
Rather than taking the opportunity to build constructively upon the notion
of co-existing common law rights and the importance of negotiated settlements,
the Bill's primary purpose appears to be establishing a framework which
achieves the maximum extinguishment possible of native title across Australia.
That is not acceptable to the Australian Democrats.
The Democrats accept the need for amendments to the Native Title Act
1993. However, we have consistently indicated our opposition to:
* allowing pastoralists to upgrade their leases to freehold;
* removing the right to negotiate on pastoral leases;
* a sunset clause on native title claims; and
* extinguishing native title on pastoral leases directly or by 'de facto'
means.
Our qualifications to the Minority Report Recommendations are based on
those points of opposition and are as follows.
Validation of intermediate period acts.
The Australian Democrats express grave concern over the proposed validation
of intermediate period acts and the provisions concerning previous
exclusive possession acts. We note that the Wik and Thayorre
peoples had their cases `on foot' in the courts before the Native
Title Act 1993 was enacted, and therefore consider that all governments
had notice of the claim that native title was not extinguished on pastoral
leases. The actions of some State and Territory governments in flouting
the proscribed procedures in the Native Title Act 1993 are to be
condemned. In thus doing so, those governments (particularly Queensland
and Western Australia) may have issued invalid titles. Deliberate ignoring
of Commonwealth laws should now not lead to an obligation on the Commonwealth
to make lawful, that which was clearly unlawful at the time. We reject
the proposition that the circumstances after the Mabo decision and
the inclusion of the past act validation regime in the Native Title
Act 1993 in any way mirrors the circumstances after the Wik decision
was handed down by the High Court of Australia.
Disassociation with parts of the Minority report.
Senator John Woodley on behalf of the Australian Democrats disassociates
himself from the following statements in the minority report in Chapter
3:
However, even if the power is interpreted in its original sense, we suggest
that opinions such as those of Harrison Moore and Quick and Garran should
be read as confining any special detrimental laws made under it to situations
where a race constitutes a threat.
Further in chapter 3 it is stated:
The words of Justices Wilson and Stephen do not indicate to us that the
power must be interpreted to support special detrimental laws in any general
sense - rather they suggest to us that if a view is taken that the races
power supports detrimental laws, it will only support laws which respond
to the special threats or problems that the people of a race present.
The Australian Democrats strongly reject the proposition that races of
people could in themselves, constitute a threat or a problem to the Australian
people and believe that both the common and statutory law which support
this proposition constitutes bad law and is based in racial discrimination.
We believe that the inclusion of these words is both inappropriate and
unnecessary in the context of Australian politics in 1997.
Conclusion
The Democrats believe it is both possible and essential for Australia
to find a fair way forward on native title. In line with the Minority
Report Recommendations and our own concerns, the Democrats will seek to
amend the Native Title Bill 1997 to ensure Australia is able to
meet the challenge of finding such a way forward. Coexistence and reconciliation
are, in our view, interdependent and necessary for the integrity of the
nation.
................................................................................
Senator John Woodley
Australian Democrats Senator for Queensland
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